THUMALLAPALLY KOTI REDDY Vs. STATE OF ANDHRA PRADESH
HIGH COURT OF ANDHRA PRADESH
THUMALLAPALLY KOTI REDDY
STATE OF ANDHRA PRADESH
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Sivaraman Nair, J. -
(1.)The accused in Sessions Case No.70/90 on the file of the Sessions Judge, Nalgonda, was convicted for an offence under Section 302 of tine Indian Penal Code and was sentenced to suffer imprisonment for life and to pay a fine of Rs.1,500/- with a default sentence. He assails the conviction and sentence passed against him.
(2.)The facts of the case are the following: The deceased was the wife of the accused. P.Ws.1 and 2 were their neighbours. P.W.3 is the brother of the deceased. The accused was a driver in the A.P. State Road Transport Corporation. The accused and deceased were married about 16 years prior to the date of incident. They were residing in Shantinagar colony at Miryalaguda. The accused was addicted to alcohol and used to pick up quarrels with his wife, the deceased. She complained to her brother P.W.3 who advised the accused and requested him to give up drinking. That advice was not properly responded. On 23-12-1988 at about 1.30 P.M. the deceased came out of her house engulfed inflames. Shestarted shouting for help. P.Ws.1 and 2 rushed towards the house of the accused and put off the fire with the help of others. They shifted the deceased to the government hospital, Miryalaguda. On 23-12-1988, P.W.7, Head Constable recorded Ex.P-5 statement of the deceased at 2.30 P.M. in the hospital. On the basis of that statement in which the deceased stated that she had set fire to herself, P.W.7 registered the same as crime No.177/88 under Ex. P-6 - F.I.R. for offences under Section 498-A and 309 IPC. The accused was named as the offender. P. W.9 S.I. of police took up investigation and found that the victim was in a serious condition. On the request from the Station House Officer, Miryalaguda to record the dying declaration of the deceased, P.W.4, the Judicial Magistrate of First Class, Miryalaguda, proceeded to the Government Hospital and recorded Ex.P-2 dying declaration at 7.25 P.M. on 23-12-1988. The victim died in the hospital on 25-12-88 at 2.00 A.M. On receipt of information that the deceased died in the hospital, S.I. of Police, P.W.9 filed Ex.P-8 memo to alter the section of offence from Sec.498-A and 309 IPC to 306 IPC. P.W.9 also recorded the statements of P.Ws.1, 2,3,5 and others. On receipt of Ex.P-2 dying declaration, the investigatingofficer filed Ex.P-9 memo to introduce Section 302 IPC in the place of Section 306 IPC. P.W.9 held inquest over the dead body of the deceased in the presence of P.W.5 and others on 25-12-88 at 9.00 A.M. Ex. P-3 was the inquest report. Thereafter, he sent the dead body for post-mortem examination. On 25-12-88 at about 1.00 P.M. P.W.8 conducted autopsy over the dead body of the deceased. Ex.P-7 is the post-mortem certificate. He recorded the cause of death as shock and haemorrhage due to extensive burns. P.W.9 conducted panchanama of the scene of offence in the presence of P.W6 and seized M.O.I Kerosene Oil tin under Ex.P-4 panchnama. P.W.10 C.I. of Police took over further investigation on 17-1 -89, after receipt of a copy of Ex.P-9 from P.W.9. On 26-1-89 at 4.00 P.M. P.W.9 arrested the accused. He was remanded to judicial custody. The successor of P.W.10 filed charge-sheet and the accused was committed to stand trial before the Court of Sessions, Nalgonda. The prosecution examined P.Ws.1 to 10 and marked Exs.P-1 to P-9. P.W.1 was a hostile witness. The accused pleaded that the deceased had committed suicide and he was not guilty of the offence of murder. The learned Sessions judge entered conviction accepting the evidence of P.W.4 and the version contained in Ex.P-2 dying declaration. He imposed the sentence of imprisonment for life and a fine of Rs.1,500/- with a default sentence. Accused has appealled.
(3.)Counsel for the appellant submitted before us that the trial judge erred in accepting Ex. P-2 dying declaration in preference to Ex.P-5 which was the earlier statement of the deceased soon after she was hospitalised he submits that Ex. P-5 statement is supported in substantial measure by the evidence of P.Ws.1, 2 and 3 and there is no reason why the earlier voluntary statement made by the deceased to P.W.7 should have been discarded. He submitted that the evidence of P.W.4 indicated sufficiently that there were two other persons present at the time when he went to the hospital to record the dying declaration on the requisition received from the Station House Officer of Miryalaguda Police Station. According to counsel, the interval of time and the presence of these two persons indicated sufficiently well that the deceased must have been tutored to implicate the accused who was not Bulling on well with the deceased in their marital life. He also submitted that even otherwise, there was sufficient time for fabricating the story implicating the accused. He therefore submits that Ex.P- 2 which reflected the deliberate efforts made to alter her case from that of suicide into homicide and to implicate the accused should result in rejection of Ex.P-2 dying declaration. He submitted further that P.W.8 the Doctor was present at the time when P.W.4 recorded Ex.P-2 dying declaration, he was not asked as to whether the deceased was in a fit condition of health to give the statement. He submits further that P.W.4 had not taken the ordinary precaution of obtaining the endorsement of P.W.8 in Ex.P-2 indicating that he had ascertained the state of health, consciousness and fitness of the deceased to give the statement. Counsel submits that these deficiencies in Ex.P-2 dying declaration militates against its acceptance in preference to earlier statement Ex.P-5 which the deceased had given to P.W.7 immediately after the incident.
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