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PETITIONER: VAJRALA PARIPURNACHARY

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT:       28/07/1998

BENCH: CJI, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT: THOMAS, J.      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  murder. 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.      Kadari Lingamma  was given  in marriage  first  to  one Chella Venkanna,  but that  marriage was  short-lived. Later she was  married to  one Bari  Venkanna which  also ended in failure. Thereafter  she stayed  with her parents and during that time she developed intimacy wit 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 .      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  unsatisfied 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  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.

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    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.      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.      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.      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.      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 statements 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.      In this  case even  in the absence of EXT. P - 12 ( the dying declaration recorded by the Judicial Magistrate) there is overwhelming  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  Magistrate 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.      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 Magistrate  himself because  he said clearly  that he  found the deceased in a fit condition to make  the statement. In fact when the Judicial 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.      One of  the main reasons to sidestep ext. p- 12 is that

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the deceased  told the  Magistrate  that  the  incident  had happened "outside 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 dilect. 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 ablaze, whether just outside  the building  or inside,  does not  affect the credibility of her dying declaration.      We have no doubt that the trial court committed serious error in rejecting the sturdy dying declaration given by the deceased to  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 miscarriage of justice. Hence  the conviction  and sentence  entered by the High Court  do not  warrant any  interference.  Appeals  are accordingly  dismissed.