Vajrala Paripurnachary Vs. State of Andhra Pradesh
EmailAppeal: Criminal Appeal Nos. 897-898 Of 1994
(From the Judgment and Order dated 31.8.94 of the Andhra Pradesh High Court in Crl. A. No. 1153/93 and Crl. R. C. No. 271 of 1993)
(From the Judgment and Order dated 31.8.94 of the Andhra Pradesh High Court in Crl. A. No. 1153/93 and Crl. R. C. No. 271 of 1993)
Petitioner: Vajrala Paripurnachary
Respondent: State of Andhra Pradesh
Apeal: Criminal Appeal Nos. 897-898 Of 1994
(From the Judgment and Order dated 31.8.94 of the Andhra Pradesh High Court in Crl. A. No. 1153/93 and Crl. R. C. No. 271 of 1993)
(From the Judgment and Order dated 31.8.94 of the Andhra Pradesh High Court in Crl. A. No. 1153/93 and Crl. R. C. No. 271 of 1993)
Judges: M.M. PUNCHHI, CJI & K.T. THOMAS, JJ
Date of Judgment: Jul 28, 1998
Appearances:
Mrs. K. Amareshwari, Senior Advocate, Mr. A. Venkateswara Rao,
Mr. G. Venkatesh, Ms. Naresh Bakshi, Advocates with her for the Appellant.
Mr. G. Prabhakar, Advocate for the Respondent.
Head Note:
CRIMINAL LAW
Penal Code, 1860 – Sec 302
Murder – Victim set on fire by pouring kerosene ail – Evidence establishing his presence – Deceased repeatedly naming the ac-cused as the one who set her ablaze to various persons – Dying declaration also recorded by magistrate – Trial court acquitting only on grounds of misdescribing the Place of incident – Setting aside of acquittal by High Court and convicting accused – Held that High Court has set right the error committed by trial Court and prevented mis-carriage of justice. (Para 10, 11).
Evidence Act, 1872 – Sec 32 (1)
Sec 32 (1) – Dying declaration – Value – Declaration recorded by Judicial Magistrate in question and answer form Fit condition of the declarant – Magistrate deposing that he had satisfied Himself about the fit condition – Fact not separately high – lighted in statement – All questions answered by injured after questions read over to her – Held that it was immaterial that fact of fit condition of the declarant was high – lighted in statement. (Para 9)
Sec 32 – Dying declaration – Deceased fold the Judicial Magis-trate about the incident “Out-side the house”-Identity of as-sailant not blurred- Possibility of difficulty in selecting proper English word far what deceased used in her dialect – Held that it doesnot effect the credibility of dying declaration (Para 10)
Sec 32 – Dying declaration – Statement recorded by Judicial Magistrate – Prior to it deceased naming the accused to her brother, then to her father and sister and then to police and to doctor – Value of dying declaration recorded by Magistrate – Held that value of dying declaration can be estimated from preceding utterances made by deceased. Even other wise with out statement recorded by Magistrate, there was over – whelming evidence against accused (Paras 7, 8)
JUDGEMENT:
THOMAS, J. :
1. A young lady aged about 25, Kadari Lingamma, was burnt to death. The crime has been attributed to her paramour Vajrala Paripurnachary (appellant herein) who was indicted for her mur-der. He was acquitted by the Sessions Court but was convicted by the High Court on an appeal under Section 302 IPC and sentenced to imprisonment for life. So he has filed this appeal as of right.
2. Kadari Lingamma was given in marriage first to one Chella Venkanna, but that marriage was short-lived. Later she was mar-ried to one Bari Venkanna which also ended in failure. Thereafter she stayed with her parents and during that time she developed intimacy with the appellant who was a married man having children. Appellant used to make nocturnal visits to her house and was maintaining illicit relationship with the deceased.
3. According to the prosecution, on the night of 28-2-1991 appellant went to the house where deceased was staying. Her father was not in the house then as he had gone out to watch his cattle. The presence of a teenaged brother of the deceased (PW-2 Ramamurthy) did not deter the appellant and the deceased to resort to libidinous cooing and they indulged in drinking and liaison. In the night a visitor knocked at the door of the house when appellant opened the door, the visitor said that he came to see deceased’s father. The said visitor, however, left the house on being told that her father had gone out of the house. The appellant suspected whether the visitor was actually somebody who came to see her in the night. He questioned her on it but she denied having any acquaintance with him. Appellant seemed unsat-isfied with her explanation. In the night he doused kerosene on her and set her ablaze. Hearing her loud cries her brother (PW-2 Ramamurthy) woke up and saw his sister writhing in flames. She told him that it was the appellant who set fire to her. The noise created by her brought some neighbours to the house who made all efforts to extinguish the fire and save her. Then PW-2 Ramamurthy went to the cattle field and reported the matter to his father. He rushed to the house and heard the story from his daughter. They all shifted her to the hospital. On the way they visited the local police station with whom she lodged her complaint Ext. P-13. At the hospital PW-12 Judicial Magistrate recorded the dying declaration of the deceased. She succumbed to her burn injuries on the next day.
4. The trial judge was not inclined to act on the dying declaration recorded by the Judicial Magistrate mainly on the ground she stated that the incident had taken place outside the house, and also because of other discrepancies. Ultimately the trial court acquitted the appellant.
5. But the Division Bench of the High Court which heard State’s appeal through the Public Prosecutor took the view that the dying declaration recorded by the Judicial Magistrate should not have been overlooked on the strength of a mere discrepancy regarding the exact place of murder. The Division Bench took into account other evidence and reached the unavoidable conclusion that it was the appellant who set her ablaze.
6. There can be no two opinions that Lingamma died of burn injuries which she would have sustained on the night of 28-2-1991. No suggestion has been put forward from any quarters that the deceased did it by herself for committing suicide. From all appearances and circumstances we have no doubt that Lingamma’s death is a case of homicide. The limited question before the court in such a situation is, who the assailant was.
7. While considering that aspect, which is the decisive issue before us, we have to take note of certain broad features. The first person to whom she talked about the incident was her own brother (PW-2 Ramamurthy). She told him that it was the appellant who did it. To her father and sister (PW-3) also she said the same version. At the police station she said the same thing. Her statement was recorded by the police and got it signed by her (Ext. P-13). In the hospital she told the same version to PW-8 doctor.
8. In this case even in the absence of Ext. P-12 (the dying declaration recorded by the Judicial Magistrate) there is over-whelming evidence to show that the deceased had previously told everybody concerned that she was set fire to by the appellant. The value of the dying declaration made to the Judicial Magis-trate can be estimated from the preceding utterances of the deceased. Nobody can possibly contend that the Judicial Magistrate had concocted a dying declaration and falsely ascribed to the deceased.
9. Ext. P-12 is the document recorded by PW-12 Judicial Magistrate which contains detailed narration of the incident. Of course PW-12 put questions to her and both the questions and their answers were recorded by him in Ext. P-12. The Sessions Judge expressed a doubt that the Judicial Magistrate would have ascertained whether the deceased was in a fit condition to make the declaration. But that doubt was not entertained by the Magis-trate himself because he said clearly that he found the deceased in a fit condition to make the statement. In fact when the Judi-cial Magistrate was examined in the court he said in clear terms that he had satisfied himself that the deceased was in a fit condition to make the statement. Of course that aspect was not separately highlighted by him in Ext. P-12. It does not matter as the witness himself said in Court that declarant was in a fit condition. The impression of the Magistrate is seen reflected in Ext. P-12 reading the questions put by him and the answers given by the injured to each one of them. Not even one answer would show that her cognitive faculties were then impaired.
10. One of the main reasons to sidestep Ext. P-12 is that the deceased told the Magistrate that the incident had happened “out-side the house”. We do not think that much can be read into it as the word “house” used by her need not necessarily be interpreted as the entire building. It could be an interior area of the building or it could be the defect of selecting the equivalent English word for what she used in her own dialect. Even if it is so, it does not matter and on that account the identity of the assailant is not blurred. The exact spot where she was set ab-laze, whether just outside the building or inside, does not affect the credibility of her dying declaration.
11. We have no doubt that the trial court committed serious error in rejecting the sturdy dying declaration given by the deceased to the Judicial Magistrate and also in rejecting the other dying declarations spoken to by PW-2 Ramamurthy, PW-3 Dasari Varamma (sister of the deceased), PW-13 Sub Inspector of Police and PW-8 Dr. B. Vishwanathan. By setting aside the wrong order of acquittal the Division Bench of the High Court set right the error committed by the trial court and prevented a miscar-riage of justice. Hence the conviction and sentence entered by the High Court do not warrant any interference. Appeals are accordingly dismissed.
1. A young lady aged about 25, Kadari Lingamma, was burnt to death. The crime has been attributed to her paramour Vajrala Paripurnachary (appellant herein) who was indicted for her mur-der. He was acquitted by the Sessions Court but was convicted by the High Court on an appeal under Section 302 IPC and sentenced to imprisonment for life. So he has filed this appeal as of right.
2. Kadari Lingamma was given in marriage first to one Chella Venkanna, but that marriage was short-lived. Later she was mar-ried to one Bari Venkanna which also ended in failure. Thereafter she stayed with her parents and during that time she developed intimacy with the appellant who was a married man having children. Appellant used to make nocturnal visits to her house and was maintaining illicit relationship with the deceased.
3. According to the prosecution, on the night of 28-2-1991 appellant went to the house where deceased was staying. Her father was not in the house then as he had gone out to watch his cattle. The presence of a teenaged brother of the deceased (PW-2 Ramamurthy) did not deter the appellant and the deceased to resort to libidinous cooing and they indulged in drinking and liaison. In the night a visitor knocked at the door of the house when appellant opened the door, the visitor said that he came to see deceased’s father. The said visitor, however, left the house on being told that her father had gone out of the house. The appellant suspected whether the visitor was actually somebody who came to see her in the night. He questioned her on it but she denied having any acquaintance with him. Appellant seemed unsat-isfied with her explanation. In the night he doused kerosene on her and set her ablaze. Hearing her loud cries her brother (PW-2 Ramamurthy) woke up and saw his sister writhing in flames. She told him that it was the appellant who set fire to her. The noise created by her brought some neighbours to the house who made all efforts to extinguish the fire and save her. Then PW-2 Ramamurthy went to the cattle field and reported the matter to his father. He rushed to the house and heard the story from his daughter. They all shifted her to the hospital. On the way they visited the local police station with whom she lodged her complaint Ext. P-13. At the hospital PW-12 Judicial Magistrate recorded the dying declaration of the deceased. She succumbed to her burn injuries on the next day.
4. The trial judge was not inclined to act on the dying declaration recorded by the Judicial Magistrate mainly on the ground she stated that the incident had taken place outside the house, and also because of other discrepancies. Ultimately the trial court acquitted the appellant.
5. But the Division Bench of the High Court which heard State’s appeal through the Public Prosecutor took the view that the dying declaration recorded by the Judicial Magistrate should not have been overlooked on the strength of a mere discrepancy regarding the exact place of murder. The Division Bench took into account other evidence and reached the unavoidable conclusion that it was the appellant who set her ablaze.
6. There can be no two opinions that Lingamma died of burn injuries which she would have sustained on the night of 28-2-1991. No suggestion has been put forward from any quarters that the deceased did it by herself for committing suicide. From all appearances and circumstances we have no doubt that Lingamma’s death is a case of homicide. The limited question before the court in such a situation is, who the assailant was.
7. While considering that aspect, which is the decisive issue before us, we have to take note of certain broad features. The first person to whom she talked about the incident was her own brother (PW-2 Ramamurthy). She told him that it was the appellant who did it. To her father and sister (PW-3) also she said the same version. At the police station she said the same thing. Her statement was recorded by the police and got it signed by her (Ext. P-13). In the hospital she told the same version to PW-8 doctor.
8. In this case even in the absence of Ext. P-12 (the dying declaration recorded by the Judicial Magistrate) there is over-whelming evidence to show that the deceased had previously told everybody concerned that she was set fire to by the appellant. The value of the dying declaration made to the Judicial Magis-trate can be estimated from the preceding utterances of the deceased. Nobody can possibly contend that the Judicial Magistrate had concocted a dying declaration and falsely ascribed to the deceased.
9. Ext. P-12 is the document recorded by PW-12 Judicial Magistrate which contains detailed narration of the incident. Of course PW-12 put questions to her and both the questions and their answers were recorded by him in Ext. P-12. The Sessions Judge expressed a doubt that the Judicial Magistrate would have ascertained whether the deceased was in a fit condition to make the declaration. But that doubt was not entertained by the Magis-trate himself because he said clearly that he found the deceased in a fit condition to make the statement. In fact when the Judi-cial Magistrate was examined in the court he said in clear terms that he had satisfied himself that the deceased was in a fit condition to make the statement. Of course that aspect was not separately highlighted by him in Ext. P-12. It does not matter as the witness himself said in Court that declarant was in a fit condition. The impression of the Magistrate is seen reflected in Ext. P-12 reading the questions put by him and the answers given by the injured to each one of them. Not even one answer would show that her cognitive faculties were then impaired.
10. One of the main reasons to sidestep Ext. P-12 is that the deceased told the Magistrate that the incident had happened “out-side the house”. We do not think that much can be read into it as the word “house” used by her need not necessarily be interpreted as the entire building. It could be an interior area of the building or it could be the defect of selecting the equivalent English word for what she used in her own dialect. Even if it is so, it does not matter and on that account the identity of the assailant is not blurred. The exact spot where she was set ab-laze, whether just outside the building or inside, does not affect the credibility of her dying declaration.
11. We have no doubt that the trial court committed serious error in rejecting the sturdy dying declaration given by the deceased to the Judicial Magistrate and also in rejecting the other dying declarations spoken to by PW-2 Ramamurthy, PW-3 Dasari Varamma (sister of the deceased), PW-13 Sub Inspector of Police and PW-8 Dr. B. Vishwanathan. By setting aside the wrong order of acquittal the Division Bench of the High Court set right the error committed by the trial court and prevented a miscar-riage of justice. Hence the conviction and sentence entered by the High Court do not warrant any interference. Appeals are accordingly dismissed.
