HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.308 OF 2009
JUDGMENT:
1. The appellant is convicted for the offence under Section 304-II IPC and sentenced to undergo RI for a period of seven years and also to pay fine of Rs.10,000/-, in default, to suffer SI for one year and he is also convicted under Section 498-A of IPC and sentenced to undergo RI for two years and to pay fine of Rs.5,000/-, in default, to undergo SI for six months, vide judgment dated 05.03.2009 in S.C.No.330 of 2007 passed by III Additional Sessions Judge (FTC), Asifabad. Aggrieved by the same, the present appeal is filed.
2. The case of the prosecution is that the deceased is the wife of appellant/accused. P.W.1 is the father of the deceased. The marriage of the deceased was performed with the accused. At the time of marriage, Rs.1,80,000/-dowry was given. She gave birth to a son. On 02.02.2007, P.W.1 was informed that his daughter received burn injuries and immediately rushed to her house and extinguished the flames with the help of blanket and also poured water. 2 Immediately deceased was shifted to hospital in an auto. After first aid, deceased was shifted to Karimnagar hospital. While taking her in an ambulance, the deceased informed that the accused came around 12.00 night in drunken condition and from 12.00 am to 3.00 a.m he questioned about the illegal contacts and thereafter poured kerosene on her and set fire.
3. The statement of deceased was recorded by police CCC Naspur and crime 14/2007 was registered under section 307 and 498A of IPC. The police requested the concerned Magistrate to record dying declaration. Accordingly, dying declaration was recorded by P.W.10. P.W.10 stated that he had taken the certification of the Doctor that deceased was mentally fit to give her declaration. PW10 stated that according to deceased, the accused was suspecting the character of the deceased that she was having illegal intimacy with others and for the said reason, poured kerosene on her and ran away. Unable to bear the burns, she came out of the house, by which time her uncle by name Prabhakar(DW1), who was the neighbor came there and telephoned to her parents. Thereafter, the parents and 3 sister brought her to Karimnagar Hospital. The statement of the deceased was recorded by the Sub Inspector of Police under Ex.P16. In the statement made to the police, she stated that around 3.00 or 4.00 a.m, the appellant poured kerosene on her and lit match stick while pouring kerosene, some kerosene fell on his hands and his hands were also burnt. On hearing cries and observing smoke one neighbor Thirupathamma informed her parents. The reason for setting fire was that the accused was suspecting her character. Later the deceased was shifted to Osmania General Hospital, where she died on 05.02.2007. The Afzalgunj police registered crime under section 174 of IPC under EXP 12. However CCC Naspur police after concluding investigation, filed charge sheet against the accused under Sections 302 and 498 A of IPC and accordingly charges were framed for the said penal provisions.
4. The trial Court having examined witnesses P.Ws.1 to 16 and having marked Exs.P1 to 19, convicted the accused as stated supra.
4
5. Learned counsel for the accused would submit that there are two contradicting dying declarations and same cannot be relied upon to convict the accused. The dying declaration made to the police is the result of tutoring by the police. As seen from the record, immediately, after the victim received burn injuries, she was shifted to Mancherial Hospital. Though there was an outpost at Mancherial Hospital, no complaint was lodged. During the period of their travel from Mancherial to Karimnagar, the relatives, who are the brother, father and sister tutored the deceased. The said fact of tutoring is evident from the conduct of P.W.1 not lodging any complaint at Mancherial.
7. Learned counsel for the accused further submits that the both statements made by her are contradicting for two reasons. One in the dying declaration made to Magistrate, she stated that accused ran away from the house. However, the statement made to police under Ex.P16, she did not state anything about the husband running away. She in fact stated that the husband received injuries. He further submits that as per Ex.P16, one Thirupathamma came to her rescue, however, the statement made before the 5 Magistrate, she stated that it was one Prabhakar (DW1) who came to her rescue. For the said reasons, the conviction recorded by the trial Court is liable to be set aside.
8. Learned Assistant Public Prosecutor submits that the parents and the relatives of the deceased were pre occupied with getting treatment for the deceased, for which reason, it cannot be said that failure to lodge complaint at Karimnagar will have any impact on the prosecution case. He further submits that the deceased, who was the wife of the accused would not be able to speak against her own husband and would not falsely implicate her husband in criminal case. For the said reasons, the finding of the learned Sessions Judge cannot be interfered with.
9. As seen from the evidence of P.Ws.1, 2, 3, 4 and 5 who are relatives of the deceased, they have not stated anything about any kind of harassment that was meted out to the deceased during her marriage. However, in the dying declaration made before the Magistrate it was mentioned that the accused was suspecting her character of having illicit intimacy with others.
6
10. As seen from the evidence of P.W.3, who is the brother of the deceased, he specifically stated that while they were at Mancherial hospital for half an hour and Doctor was not available, the deceased did not state anything about the accused at Mancherial Hospital. P.W.1, who is the father of the deceased also stated that he did not give any complaint at Mancherial or Karimnagar. Further, P.W.1 stated that when he went to the scene of offence, the accused was present. However, he did not find any injuries on his hands.
11. The person named in the dying declaration is Prabhakar, who came to deceased's rescue is examined as D.W.1 in the Court. He stated that the accused and the deceased were living cordially after their marriage. On 02.02.2007 on hearing cries of the deceased, he rushed to the spot and found that the deceased was on fire and observed that the accused/appellant pouring water, for which reason, the hands of the accused were also burnt. He stated that the accused also went to the hospital and he was admitted in the same hospital for treatment. 7
12. The reason for not giving any complaint at Mancherial has not been explained by the prosecution. Though the deceased was in the hospital at Mancherial, no complaint was lodged either by P.W.1, the father of the deceased or any of the relatives. However, the deceased was taken to Karimnagar Hospital where Ex.P16 was recorded, on the basis of which, First Information Report was registered by the Police Station Naspur, Adilabad.
14. The said circumstance has to be viewed with suspicion. Though, it was admitted by P.W.2, P.W.1 and D.W.1 about the presence of the accused in the house, however, the deceased stated that the accused had run away. P.W.4 and D.W.1, who went to the scene of offence, observed that the accused receiving burn injuries on hands and poured water on the deceased and also covered her with a blanket. However, P.W.4 was declared hostile to the prosecution case.
15. The different versions given by the witnesses regarding;
i) the presence of the accused at the scene of offence; ii) receiving of injuries by the accused on his hands and his treatment in the hospital; iii) D.W.1 stating that the 8 accused received injuries while trying to extinguish the flames on the deceased and also pouring water on her, giving rise to a doubt regarding the exact manner in which the incident had occurred. Though the police had filed charge sheet for the offence under Section 302 IPC on the basis of the statement recorded by the police under Ex.P16 and also under Ex.P9, statement recorded by the Magistrate, the fact of presence of the accused and trying to extinguish fire, creates doubt regarding the actual happenings.
16. It is the specific case of the defence that the deceased poured kerosene on herself and tried to commit suicide. However, in the back ground of there being no compliant at Mancherial, though the deceased was enquired about how she received injuries but nothing was stated by PW.1- father of the deceased and P.W.3- the sister of the deceased, it casts any amount of doubt whether the case of the prosecution case is correct. There is no doubt that P.Ws.1 and 2 accompanied the deceased from Mancherial Hospital to Karimnagar Hospital before the two statements under Exs.P16 and P9 were made by the deceased.
9
17. There was never any panchayat held or complaints made against the accused regarding any kind of harassment suspecting the character of the deceased. The said circumstance has to be considered before convicting the accused whether the burns was result of the accused pouring kerosene on her or the deceased trying to commit suicide.
18. The learned counsel submits that since there are no allegations of any harassment against the accused after the marriage, the accused has to be given benefit of doubt. Further there is no explanation as to why there are differences and the accused tried to commit suicide. For the reason of there being material discrepancies in the projection of the prosecution case to determine whether the burns were result of the accused pouring kerosene and setting fire or that she committed suicide, the conviction recorded against the accused under Section 304-II IPC and Section 498-A of IPC cannot be maintained.
19. In the result, the Criminal Appeal is allowed. The judgment of the trial Court dated 05.03.2009 in S.C.No.330 of 2007 is set aside. Since the appellant is on bail, his bail 10 bonds stand cancelled. As a sequel thereto, miscellaneous applications, if any, shall stand closed.
________________ K.SURENDER, J Date: 03.08.2022 kvs 11 HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.308 of 2009 Date:03.08.2022 kvs