HONOURABLE SRI JUSTICE A.VENKATESHWARA REDDY
AND
HONOURABLE DR. JUSTICE D.NAGARJUN
CRIMINAL APPEAL No.158 of 2014
JUDGMENT: (Per the Honourable Dr. Justice D. Nagarjun)
This Criminal Appeal is filed aggrieved by the conviction
and sentence recorded for the offence under Section 302 of
Indian Penal Code in S.C.No.113 of 2011 as per the
Judgment dated 07.10.2013 of the learned III Additional
Metropolitan Sessions Judge, Hyderabad, solely on the basis
of dying declaration.
02. The facts in brief are as follows:
The deceased, after the death of her husband, started
living with the appellant. On 22.04.2009 at about 11:00 AM,
the appellant came to their house in drunken condition,
abused her, beat her and has poured kerosene on her body
and set her ablaze and went out by closing doors from
outside. On hearing hues and cries of the deceased, the local
people have rescued her by pouring water on her,
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extinguished flames and shifted her to Osmania General
Hospital, Hyderabad.
03. LW15/Head Constable 5786 of P.S. Saidabad has
recorded the statement of the injured/deceased in the burns
ward of Osmania General Hospital, Hyderabad and on the
strength of the said statement of the deceased, PW8 Inspector
of Police, has registered a case in Cr.No.184 of 2009 under
Section 307 of Indian Penal Code against the appellant. On
22.04.2009 at 06:20 PM., the injured died of burn injuries
and thereby section of law was altered from Section 307 to
302 of Indian Penal Code, inquest was conducted on the dead
body of the deceased and post-mortem examination was
conducted. After completion of rest of the investigation and
on collection of all the documents, the charge sheet is filed
alleging that the appellant has committed the offence under
Section 302 of Indian Penal Code and the same was
numbered as S.C.No.113 of 2011.
04. The learned III Additional Metropolitan Sessions Judge,
Hyderabad had framed charges against the appellant
punishable under Section 302 of Indian Penal Code. The
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prosecution has examined 9 witnesses and marked Exs.P1 to
P13 and Mos.1 and 2. On behalf of the appellant, no witness
was examined and no document was marked. On hearing
both sides, and on considering entire material available on
record, the trial Court has recorded the finding that the
appellant has found guilty for the offence under Section 302
of Indian Penal Code and sentenced to undergo Life
Imprisonment and also to pay fine of Rs.1,000/- and in
default of payment of fine, he shall undergo Simple
Imprisonment for two months.
05. Aggrieved by the same, the present Criminal Appeal is
filed on the following grounds:
i. The Judgment of the trial Court is contrary to law,
weight of evidence and probabilities of the case.
ii. The trial Court has failed to consider that there were no
direct witnesses and there was no motive for the appellant to
commit the alleged offence.
iii. The trial Court failed to consider that there is also
possibility of third person committing the offence.
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06. Heard Smt. G. Jaya Reddy, learned legal-aid counsel for
the Appellant as well as Sri S.Ganesh, learned Assistant
Public Prosecutor for the State / Respondent.
07. Now the point for determination is:
Whether the Judgment of Conviction and Sentence dated 07.10.2013 passed in S.C.No.113 of 2011 on the file of the learned III Additional Metropolitan Sessions Judge, Hyderabad, is liable to be set side?
POINT:
08. There is no dispute that the deceased was living with the appellant after the death of her husband and that the appellant had no wife and thereby both of them were living together as husband and wife, whereas the children of the deceased were married and living separately along with their family members.
09. As per the prosecution, on 22.04.2009 at about 11:00 AM., the appellant, who was in drunken condition, has abused and beat the deceased and poured kerosene on her body and set her ablaze and went away by closing doors from outside. Later the neighbours, on hearing hues and cries of 5 the deceased rescued her and shifted her to hospital where she subsequently died while undergoing treatment.
10. Ex.P1 is the statement of the injured/deceased recorded by LW15/Head Constable 5786 of P.S. Saidabad at Osmania General Hospital, Hyderabad, at 12:30 PM., on 22.04.2009, within 1½ hours after the incident, in the burns ward of Osmania General Hospital, Hyderabad.
11. According to the statement of the deceased, which is registered as FIR, after the death of her husband she has been living for the last 20 years with the appellant and the appellant used to harass her. On that day also the appellant came home in drunken condition and while beating and abusing her, the appellant took Mo.1 kerosene plastic bottle and poured kerosene on her body and lit fire with match sticks/MO.2.
12. During the course of trial, the prosecution though examined PW1 to PW9, the crucial evidence is that of the learned XII Additional Chief Metropolitan Magistrate, Hyderabad who as examined as PW9. According to his 6 evidence, on 22.04.2009 at 03:25 PM., he received requisition from Sub-Inspector of Police, Saibadad Police Station to record the dying declaration of the deceased Smt.E.Lakshmamma. He took the endorsement of Medical Officer who was on duty to that effect that the victim/deceased was conscious, coherent and in fit state of mind. After satisfying that the injured/deceased was in a position to understand the questions and give rational answers, he has recorded the statement of the deceased. The relevant portion of the statement recorded by the learned Magistrate is as under:
"Today at 11:00 AM., my husband came to home in drunken state and abused me. He then, closed the doors of house, poured kerosene on my body and set fire to me. Then, I received these injuries. My husband consumes 'sara' everyday and he suspected that I have amount (paisalu) saved by me and I am not giving, as such the set fire to me".
The Duty Medical Officer by name Dr.D.N.U.Annapurna, M.S., endorsed that the deceased was conscious, coherent and in a fit state of mind while recording the dying declaration. Learned Judicial Officer who has recorded the statement was given suggestion in the cross-7
examination that prior to recording of dying declaration the relatives and local people were present and that the deceased gave a false statement at their instance. He was also suggested that prior to recording of dying declaration, the deceased was tutored by her relatives and neighbours. There is no clarity in the suggestion as to which relative or the neighbourer was present and tutored her.
13. On going through the manner in which the dying declaration was recorded by the learned Magistrate and on considering the chief and cross examination of the learned Magistrate, there is nothing which creates a doubt in respect of accepting the dying declaration.
14. The contents of the dying declaration of the deceased recorded by the learned Magistrate corroborates with the statement of victim/deceased recorded by LW15/Head Constable 5786 of P.S. Saidabad, on the basis of which FIR is registered. Considering the contents of the dying declaration recorded by the learned Magistrate, coupled with the evidence and statement of victim given to the Head Constable, there is no reason why the last statement of the 8 victim/deceased as recorded by the learned Magistrate cannot be accepted.
15. The daughter of the deceased, who was examined as PW.1, has deposed that she was not present in the house when the incident happened and she came to know about the death of her mother through her neighbours. Except that, she has not attributed anything against the appellant, thereby the appellant has chosen not to cross-examine this witness. PW2, who is Social worker, and PW3, kirana merchant, though produced as neighbours, could not support the case of the prosecution and they were though declared as hostile and were cross-examined by the learned Assistant Public Prosecutor, nothing incriminating could be elicited against the appellant.
16. PW4 is a mediator for inquest under Ex.P3, which was conducted at Osmania General Hospital, Hyderabad and also scene of offence panchanama Ex.P4 and recovery of Mo.1 kerosene plastic bottle and Mo.2 burnt match sticks. The appellant has not disputed his evidence. PW5 and PW6 were produced before the Court as witnesses for confessional 9 statement of the appellant, but they have not supported the case of the prosecution.
17. PW7 is the Medical Officer who has conducted autopsy over the dead body of the deceased on 23.04.2009 and gave post-mortem examination report stating that the deceased was suffered with 98% of burns and the death occurred on account of 'shock due to burns'.
18. PW8, who is the Investigating Officer, has deposed in respect of issuance of FIR under Ex.P9, basing on Ex.P8 statement of the deceased, deposed about recording of the statements under Section 161 Cr.P.C., and conducting of scene of offence panchanama and recovering material objects, conducting of inquest panchanama, recording of confessional statements of the accused, deploying photographer to the scene of offence, recording of statement of the witnesses and filing of the charge sheet. During the course of cross-examination, nothing was elicited, which is helpful to the appellant.
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19. The learned counsel for the appellant has submitted that there is no motive for the appellant to kill the victim with whom he has been living for the last 20 years. Though there is no marriage between the appellant and the deceased, the story of the prosecution is that after the death of the husband of the deceased, the deceased started living with the appellant along with her children born to her through her deceased husband. The daughter of the deceased was examined as PW1 and she has deposed that the deceased was her mother and appellant is her father. This statement of PW.1 clearly indicates that deceased and appellant were living as wife and husband.
20. The statement of the deceased in the form of dying declaration is crystal clear to the effect that the appellant was suspecting that she saved some money and has not disclosed to the appellant and thereby he has killed her. The other reason given is that the appellant was harassing her everyday by coming to the house in drunken condition and used to abuse and beat her and thereby in part of the said harassment in drunken condition, the appellant has poured 11 kerosene and set her ablaze. Therefore, the contention of the learned counsel for the appellant that there is no motive, cannot be accepted.
21. Even otherwise, once there is strong evidence in the form of dying declaration, the question of having or not having motive for commission of offence is not at all important. Even if the prosecution fails to prove motive, if there is direct strong evidence that the accused has committed the offence, then there is no option except find the accused guilty of the offence alleged.
22. It is also submitted by the learned counsel for the appellant that there are no direct witnesses and thereby it is not safe to rely only on the circumstantial evidence and found the appellant guilty. It is true that there are no eyewitnesses to the incident. However, there is a strong evidence produced by the prosecution in the form of dying declaration, which speaks that the deceased has categorically stated that the appellant is responsible for her death. Therefore, the contention of the appellant that since there are 12 no eyewitnesses, thereby the accused can be found not guilty, has no basis.
23. On considering the entire material on record, except the dying declaration under Ex.P13 recorded by PW.9, there is no other material connecting the appellant to the death of the deceased. The question therefore arises is whether dying declaration can be substantive piece of evidence and basing on the dying declaration alone whether conviction can be recorded?
24. In Gopal vs. State of Karnataka1, the Hon'ble Supreme Court has held as under:
"2. The allegation against the appellant-accused is that on 29-12-1998 at about 5 p.m., he poured kerosene on the body of his wife, Mallavva and set her on fire. It has come in the evidence that Mallavva was immediately taken to the hospital by PW 8, Nagavva and PW 15, Sushila and she was treated by PW 5, Dr Noor Ahmed. PW 5 is said to have intimated to the police station on which PW 13, PSI Ravi came there and recorded her dying declaration.
3. In that dying declaration, the deceased has clearly alleged that the accused used to drink liquor and quarrel with her. He also used to assault the deceased in a drunken state. On 29-12-1998, the accused had given Rs.200 to her for purchase of ration. He immediately took back Rs.100 out of Rs.200. She purchased the ration of the remaining 1 (2011) 14 SCC 396 13 amount of Rs.100. At about 5 p.m., on the same day, the accused returned to the house and demanded Rs.100 from her. Thereupon, the deceased told the accused that she had already purchased the ration but the accused asked her to return the ration and get him Rs.100 back. On her refusal, the accused became angry and tied her hands and poured kerosene on her body and set her ablaze. On 19-1-1999, Mallavva succumbed to the injuries.
4. We have heard the learned counsel appearing for the parties and gone through the record and judgments of the courts below. We are convinced that the findings of the trial court as well as of the High Court that this dying declaration can be made the sole basis for the conviction of the accused is a correct inference drawn by the courts below.
5. We have ourselves examined the dying declaration. What impresses us is that there is solely no explanation by the accused anywhere as to how the presence of kerosene has been found on the brassiere, saree and petticoat of the unfortunate lady. We have seen the FSL report, Ext. P-25 for that purpose which endorses this fact. It is not the defence of the accused that the death was suicidal or accidental. There is nothing on record even to entertain such doubt. The presence of kerosene residue on the inner and outer garments provides strong corroboration of the version in the dying declaration.
6. It is true that the witnesses, who carried the deceased to the hospital, turned hostile during their examinations but that may not be an escape route for the accused because men may lie but the circumstances do not. The circumstances in this case clinch the proof that it is the accused and the accused alone who has committed this offence.
7. Mr Ram Lal Roy, learned counsel appearing for the accused pointed out that the investigating officer did not make any attempt to get recorded the second dying declaration of the deceased by a Magistrate. It is really true. It would have been better if the investigating officer had made an attempt to get 14 recorded the second dying declaration of the deceased by a Magistrate. But, in our opinion, the dying declaration recorded by PW 13 and supported by PW 5 Dr Noor Ahmed and the endorsement made by him to the effect that the deceased was in a fit mental condition to depose before the police convinces us that the dying declaration itself was a good dying declaration and could have been acted upon.
8. We find no merit in this appeal. It is, accordingly, dismissed."
The rationale of the above authority is also squarely applicable to the facts of the case. Hence, basing on the dying declaration alone, conviction can certainly be recorded.
25. It is also submitted by the learned counsel for the appellant that there is a possibility of third party committing the crime. Though the learned counsel for the appellant has taken this plea, on going through entire cross-examination of the prosecution witnesses, including the Investigating Officer, no suggestion has been given by the appellant stating that a third person is involved in commission of the offence or there is also no suggestion that the deceased herself committed suicide or any such other thing. Hence, the contention of the appellant that third person could have committed offence and that the appellant is innocent, has no basis and cannot be accepted.
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26. In view of the above discussion, the trial Court has rightly appreciated the evidence on record and applied the law properly to the established facts and recorded a finding that the appellant was guilty for the offence under Section 302 of Indian Penal Code. Therefore, there are no merits in the Criminal Appeal and the same is liable to be dismissed confirming the Judgment of Conviction and Sentence dated 07.10.2013 passed in S.C.No.113 of 2011 on the file of the learned III Additional Metropolitan Sessions Judge, Hyderabad.
27. Accordingly, the criminal appeal is dismissed. No costs.
Miscellaneous applications, if any, shall stand closed.
________________________________ A.VENKATESHWARA REDDY, J ______________________ DR. D.NAGARJUN, J Date: 06.12.2022 ES/KHRM 16 HONOURABLE SRI JUSTICE A.VENKATESHWARA REDDY & HONOURABLE DR. JUSTICE D.NAGARJUN CRIMINAL APPEAL No.158 of 2014 Date: 06.12.2022 ES/KHRM