Telangana High Court
The State Of A.P., Rep. By The P.P., vs Bhupelli , Kothapalli Kumar on 13 December, 2023
Author: P.Sree Sudha
Bench: K.Lakshman, P.Sree Sudha
THE HONOURABLE SRI JUSTICE K.LAKSHMAN
AND
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CRIMINAL APPEAL No.126 of 2014
JUDGMENT:
(per Hon'ble Smt. Justice P.Sree Sudha) This Criminal Appeal is filed against the Judgment dated 07.07.2011, in S.C.No.428 of 2010 passed by the learned IV - Additional Sessions Judge (FTC), Karimnagar.
2. The case of the prosecution is that the father of the deceased Lavanya, gave complaint on 03.11.2008, at about 9:00 AM stating that he performed the marriage of her daughter with A.1 on 03.03.1999. At the time of marriage, he gave Rs.1,90,000/- cash, 6 tulas of gold and other articles as dowry to accused in the presence of elders. Subsequently, they were blessed with two children by name Ajay Kumar aged 8 years and Sahithya aged about 5 years. After the birth of the daughter, A.1 and his parents started harassing his daughter physically and mentally demanding additional dowry, as such he gave another 3 tulas of gold and later A.1 sold out his auto and spent all the money for drinking and harassing his daughter daily. Recently, he retired from service. On 2 15.10.2005, A.1 and his parents harassed his daughter demanding to bring three more lakhs, as such his two sons along with their friends went to the house of his daughter and promised that they will deposit some amount in the names of two children, but on 29.10.2008 in-laws of his daughter demanded amount and at their instance, A.1 poured kerosene on his daughter and set her to fire and it was informed that neighbors shifted her in 108 ambulance to Surya Hospital, Godavarikhani. When they went to hospital, her condition was critical, as such she was shifted to Yashoda Hospital and Kamineni Hospitals, but as they refused to admit her, she was admitted in Gandhi Hospital, Secunderabad. On 02.11.2008, at about 11.00 AM, she succumbed to injuries while undergoing treatment. Therefore, he requested to take action against A.1 and his parents, as they are the cause of death of his daughter. Later, alteration memo was filed and section of law was altered from 498-A and 307 of IPC to section 498-A and 302 of IPC.
3. To prove the guilt of the accused, prosecution examined P.Ws.1 to 16 and marked Exs.P1 to P12 and also marked M.Os.1 and 2. The trial Court after considering the oral and documentary evidence, found A.1 to A.3 not guilty for the offences under Sections 498-A, 302 of IPC and Sections 3 and 4 3 of Dowry Prohibition Act and are acquitted under Section 235(1) of Cr.P.C for the said offences. Aggrieved by the said judgment, State preferred the present appeal. At the time of admission, A.2 and A.3 were acquitted, as such this appeal is only against A.1.
4. The learned Counsel for the accused mainly contended that Ex.P10 statement of the deceased recorded by P.W.15- Investigation Officer, Ex.P12-Dying Declaration of the deceased recorded by P.W.16-Magistrate and P.Ws.1 to 5 clearly supported the case of the prosecution and proved the guilt of the accused beyond reasonable doubt, but the trial Court failed to consider the same and acquitted the accused. Therefore, requested the Court to set aside the Judgment passed by the trial Court.
5. Heard arguments of both the Counsel and perused the entire evidence on record.
6. Prosecution examined 16 witnesses, out of which P.Ws.1 to 5 are near relatives of the deceased. P.W.1 is the father, P.Ws.2, 4 and 5 are brothers, P.W.3 is the mother of the deceased. All of them stated regarding the payment of dowry at 4 the time of marriage and also regarding the demand of Rs.3,00,000/- after the retirement of P.W.1. They further stated that they took the deceased to Kamineni hospital and then to Sarojini Devi Hospital, but they refused to admit her, as such they shifted her to Gandhi Hospital and she died after four days. A.2 was an employee in Singareni collieries. They have not enquired about the antecedents of the accused. At the time of marriage, A.2 transferred to Bhupalpally, as such A.2 and A.3 were also residing at Bhupalpally in a rented house. A.2 retired 5 months prior to the death of the deceased. A.2 deposited some amount in fixed deposit in the name of the children of the deceased. They also stated that the children of the deceased and daughter of sister of A.1 were also present in the house at the time of incident. They came to know about the incident through neighbors. They further stated that after the death of the deceased, her children were residing with A.2 and A.3 from the past one year. They handed over the children to A.2 and A.3 on their request and also agreed to give land and fixed deposits in the name of children and they took all the gold and silver articles from the house of A.1 after giving receipt. A.2 and A.3 gave Rs.50,000/- to take children, even though P.W.1 had spent Rs.2,00,000/- at Gandhi Hospital. It was suggested to them that they tutored her daughter for giving statements at 5 Godavarikahani, Gandi Hospital and before the Magistrate, but they denied it, but they were with her when she was shifted from Godavarikhani to Kamineni hospital and from there to Gandhi Hospital and till her death. They stated that they did not know whether there was dispute between A.1 and deceased for purchasing an Auto by encashing fixed deposit, which was in the name of their children.
7. P.W.6 is the Doctor. He stated that on the requisition of the Circle Inspector of Police, the learned Magistrate came, but the deceased was unable to speak, as such her statement was not recorded. Then he advised the parents of the deceased to take her to Hyderabad. In his cross-examination, he stated that it took 1½ to 2 hours for treatment and the C.I and learned Magistrate came 1 hour thereafter. P.W.7 is the Plastic Surgeon. He stated that he brought the case sheet. The admission slip shows that patient alleged to have burnt herself with kerosene at her residence on 29.10.2008 at about 9.00 PM near Karimnagar. He mentioned history in the case sheet. The Duty Doctor mentioned that patient alleged to have committed suicide by setting herself on fire with kerosene, but the said case sheet and admission slip were not marked for the reasons best known to the prosecution. P.W.8 is the photographer, 6 P.Ws.9 and 10 are friends of P.W.1 and they were present at the time of mediations. They also stated regarding the payment of Rs.1,90,000/- in cash and 6 tulas of gold as dowry to the accused at the time of marriage and further they stated that they conducted Panchayat and advised that after retirement of P.W.1, amount will be arranged and fixed deposit will be done in the name of two children. They also stated that P.W.1 informed about the harassment of A.1 to A.3 against his daughter. They admitted that they have not stated regarding the depositing of amount in the name of children in their statement under Section 161 of Cr.P.C. P.W.11 is the Panch witness for the inquest panchanama marked under Ex.P3. P.W.12 is the Panch witness for scene of offence panchanama and M.O's 1 and 2 were seized in his presence. P.W.13 is the Assistant Professor, Department of forensic medicine in Gandhi Medical College, Hyderabad. He conducted autopsy over the dead body of the deceased and found the cause of death as burns of 90% and issued post mortem examination report with his signature. He stated that deceased died due to septic shock due to infected burns. He further stated that there is possibility of strangulation in burns case, but as there are 3rd degree burns, he could not identify the strangulation marks, as whole soft 7 tissues were damaged. If it is a case of 1st degree burns, he can identify the ligature marks.
8. P.W.14 is the Sub Inspector of Police, who received the complaint and registered a case in Cr.No.132 of 2008 under Section 498-A and 307 of IPC and issued Ex.7-F.I.R. He admitted that Magistrate received F.I.R on 31.10.2008, at about 10:30 AM. He specified the distance between P.S to quarters of Magistrate as 10 to 11 Kms. He also stated that C.I received C.D file at 12:30 mid night and sent it to the Magistrate. P.W.15 is the Investigation Officer, who recorded the statement of the deceased and obtained her thumb impression. He had also recorded the statement of P.W.6 and filed requisition before M.R.O to record her statement. P.W.14 registered the F.I.R and had sent the C.D file to him. Ex.P8 is the alteration memo for altering section of law from Section 498-A and 307 IPC to 498-A and 302 IPC. He arrested A.1 on 06.11.2008, at about 6:00 PM and arrested A.2 and A.3 on 21.12.2009, and sent them to Court for judicial custody. In his Cross-examination, he admitted that he has seen the case sheet and admission slip of the deceased at Gandhi Hospital, but he has not verified the record. He also stated that P.W.7 admitted the patient and he had not collected the records either from Surya Hospital or 8 Gandhi Hospital. Neighbours admitted the deceased at Surya Hospital in 108 ambulance, but he has not examined the neighbours or staff of 108. He further admitted that witnesses examined by him have not stated the names of elders, who participated in the marriage alliance and also subsequent Panchayats. He stated that he did not know where A.2 was working and when he was retired and after retirement where he was residing and he had also not examined regarding the retirement of P.W.1. It was suggested to him that deceased deposed that she poured kerosene on herself, as such they have not produced case sheets of Surya Hospital and Gandhi Hospital, but he denied it.
9. P.W.16 is the Magistrate who recorded the Dying Declaration. He stated that immediately after receiving requisition from the police, he visited the hospital and duty doctor identified the victim as, she was in fit state of mind to give her statement. To ascertain her state of mind, he posed preliminary questions to her and then obtained the endorsement of the duty doctor and later recorded the Dying Declaration. He also stated that as her fingers of both hands were found burnt, they have taken her left big toe impression on the statement. Ex.P11 is the requisition given by S.I of Police, 9 Chilakalaguda and Ex.P12 is the Dying Declaration recorded by him. In his Cross-examination, he stated that no one was present near the patient except the duty doctor and nursing attender during his visit. The trial Court cited several Judgments and stated that as per the evidence, deceased poured kerosence on herself and set her to fire and on relying upon the evidence of P.W.7, acquitted all the accused.
10. Now, it is for this Court to see whether the Dying Declaration given by the deceased Lavanya is to be relied upon for giving conviction or not.
11. On 29.10.2008, statement of the deceased was recorded under Ex.P10 by C.I of Godavarikhani - II Town and it was endorsed by the Doctor that deceased was coherent and her statement was recorded in his presence. In the statement, she clearly stated that her marriage was performed about 9 years back with Kumar/A.1 and they were having two children namely Ajay Kumar, aged 8 years and Sahitya, aged about 6 years. Her husband was working as Auto driver. He sold his Auto one month back and addicted to drinking. On the date of incident, A.1 intended to take bank loan and picked up quarrel with her and poured Kerosene on her and set her on fire. The 10 incident was occurred on 29.10.2008, at about 9:00 PM and her statement was recorded on the same day and her thumb impression was taken on the statement. Basing on the said statement, case was registered in Cr.No.132 of 2008, under Section 498-A and 307 of IPC and F.I.R was sent to all the concerned. This earlier statement was given by the deceased Lavanya immediately after the occurance. In fact, she was shifted to the hospital in 108 by neighbours. P.W.6 stated that on the requisition of C.I, learned Magistrate came to record the statement of the deceased, by that time she was unable to speak, as such her statement was not recorded and she was referred to the Hospital at Hyderabad. Ex.P11 is the requisition given by the Sub Inspector of Police to the Judicial Magistrate to record Dying Declaration of the deceased Lavanya, in which it was stated that she alleged to have self-inflicted burn injuries at her residence on 29.10.2008, at about 9:00 PM and received 100% burns. P.W.7 is doing Post Graduation in Plastic Surgery in G.M.C. He stated that on 02.11.2008, deceased lavanya had her last breath on account of burn injuries and he informed the same to R.M.O and police recorded his statement, but in the Cross-examination, he stated that he brought the case sheet and admission slip, which shows that she alleged to have burnt herself with Kerosene at her residence on 29.10.2008 at about 11 9:00 PM. The duty Doctor also mentioned that patient committed suicide by setting herself to fire, but the said case sheet and admissions slip were not marked by the prosecution. It is one of the crucial piece of evidence, though he brought the case sheet and admission slip, why it was not marked was not explained by the prosecution, but it seems that basing on the said case sheet, requisition was sent to the Magistrate under Ex.P11, in which it was stated that it is a case of self-inflicted burn injuries.
12. However, after receiving requisition, Magistrate came and recorded the Dying Declaration under Ex.P12. He posed preliminary questions to the deceased Lavanya to ascertain her state of mind and Doctor made an endorsement that patient is conscious, coherent and in full senses to give statement. He had also disclosed his identity and the purpose of his visit and asked her to narrate the incident, then she stated that her marriage was performed about 9 years back and they are having two children. She along with her husband was residing at 8th incline colony, Godavarikhani. Her husband was running an Auto, but he sold away his Auto about 3 or 4 months back, from then onwards he was not doing any work. Whenever she questioned him, he used to beat her and she informed the same 12 to her brothers i.e., Srinu, raju and mahinder, as such he developed grudge against her and stopped talking with her. She further stated that her in-laws deposited Rs.1,50,000/- in the name of her two children and her husband insisted her to cancel the fixed deposit for purchasing the Auto, when she refused for the same, he picked up quarrel on the previous night at about 10:00 PM and he asked her to die in a fit of anger, as such she intended to die and poured some Kerosene on her and her husband also poured some more Kerosene, after that he lit a paper on gas stove and set her to fire. At that time, the sister's daughter of A.1, by name Sony was also present in the house. She restrained her husband, but he did not heed to her words and asked the deceased to die and set her to fire, but when she was in flames, he poured water. When she raised cries, neighbours came and taken her to hospital and also stated that her husband was responsible for the cause of her death.
13. The learned Counsel for the accused argued that P.Ws.1 to 5 tutored her and it is the tutored version. She gave her Dying Declaration later against the accused at the instance of her parents and brothers.
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14. Now, it is for this Court to see the genuinity of the Dying Declaration given before the Magistrate.
15. No doubt, the learned Magistrate recorded the statement of the deceased Lavanya by following the rule prescribed under Criminal Rules of Practice. She gave Dying Declaration in detail by mentioning several facts. Though she stated that initially she poured some Kerosene on her, she clearly stated that her husband poured some more Kerosene on her. He lit the gas stove and lit one paper and set her on fire, though his sister's daughter restraining him from doing so, but when she was in flames, he poured some water, but he had not taken her to hospital, only on hearing her cries, neighbours taken her to hospital and informed to her parents. When they reached hospital, by that time she was brought to hospital in ambulance. Initially, when she was shifted to the hospital, she stated to the C.I of Police that her husband set her to ablaze and she reiterated the same before the Magistrate in detail and clearly stated that her husband is the reason for her death. Though, it was argued by the learned Counsel for the accused that it is a case of self-inflicted injuries and she stated so at the instance of her parents and brothers, as per the evidence of P.W.7, the case sheet along with admission slip, in which it was 14 mentioned that it was a self-inflicted injury were not marked before the Court. He only stated that deceased had her last breath on 02.11.2008, and informed the same to R.M.O. There is no evidence to show that she inflicted injuries on herself. The only evidence is the case sheet and admission slip, but they were not marked by the prosecution and even accused did not called for the said record. Even though they were brought to the Court, the learned Counsel for the accused, did not insist them to mark the said documents.
16. In many cases, the Court has laying down such principles emphasized the necessity of interference with an order of acquittal being based only on "compelling and substantial reasons" and has expressed the view that unless such reasons are present an Appeal Court should not interfere with an order of acquittal. Vide Suraj Pal Singh Vs. The State, Ajmer Singh Vs. State of Punjab and in Puran Vs. State of Punjab, the use of words "compelling reasons" embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had meant by words "compelling reasons". In later years the Court has often avoided emphasis on "compelling reasons"
but nonetheless adhered to the view expressed earlier that 15 before interfering in appeal with an order of acquittal a Court must examine not only questions of law and fact in all their aspects, but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable. Vide Chinta Vs. The state of Madhya Pradesh, Ashrafkha Haibaktha Pathan Vs. The state of Bombay, it is clear that in emphasizing in many cases the necessity of "compelling reasons" to justify an interference with an order of acquittal the Court did not in any way try to curtail the power bestowed on appellate Courts under Section 423 of the Code of Criminal Procedure when hearing appeals against acquittal, but conscious of the intense dislike in our jurisprudence of the conviction of innocent persons and of the facts that in many systems of jurisprudence the law does not provide at all for any appeal against an order of acquittal the Court was anxious to impress all the appellate Courts the importance of bestowing special care in the shifting of evidence in appeal against acquittals. As has already been pointed out less emphasis is being given in the more recent pronouncements of this Court on "compelling reasons". But, on close analysis, it is clear that the 16 principles laid down by the Court in this matter have remained the same. What may be called the golden thread running through all these decisions is the rule that in deciding appeals, against acquittal the Court of appeal must examine the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the appellate Court comes to the conclusion that the view taken by the lower court is clearly an unreasonable one, that itself is a "compelling reason"
for interference. For, it is a Court's duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established.
17. There are two Dying Declarations before the Court, one was recorded by the C.I of Police immediately after the incident and another was recorded by the learned Magistrate on 30.10.2008. The learned Magistrate clearly stated that at the time of recording the statement, except the duty doctor and the nurse, no other person was present. Merely because P.Ws.1 to 5 were present with the victim, it cannot be said that it is a tutored version. Perusal of the Dying Declaration shows that it 17 is not a tutored version and there is no reason for her to implicate her husband falsely without any reason. She clearly stated regarding the dispute between her husband and herself and she informed the same to her brothers and she also stated that her in-laws deposited Rs.1,50,000/- in the name of her children one week prior to the date of incident, but A.2 retired 5 months prior to the incident. The eye-witness to the occurrence i.e., sister's daughter Sony was not examined. The manner in which he set her ablaze was not spontaneous or in sudden provocation. When she poured some Kerosene, he also poured some more Kerosene, lit the gas stove and by lighting paper, he set her ablaze. In the meanwhile, his sister's daughter restrained him not to do so. Even then, he asked her to die and set her to fire, later he poured some water and deserted her to her fate and left the place without taking her to hospital. The subsequent conduct of the accused also shows that there is no repentantance in A.1 for setting her ablaze. She clearly stated in both the Dying Declarations that her husband is the cause of her death. The demand of dowry was spoken by P.Ws.1 to 5 and also by P.Ws.9 & 10. The deceased Lavanya stated that her husband sold away his Auto about 3 or 4 months prior to the incident, he was not doing any work and addicted to drinking. This Court is conscious of the fact that appellate Court should 18 be slow in reversing the Judgment of the acquittal in view of the citations of the Hon'ble Apex Court. In this case, there are two Dying Declarations. In both the Dying Declarations, deceased made allegation against her husband and both the Dying Declarations are consistent regarding that aspect, but the trial Court erroneously even without any record or basis arrived to the conclusion that she inflicted injuries on her own which is patently erroneous. Therefore, this Court finds that the Judgment passed by the trial Court is not on proper appreciation of facts and is liable to be set aside.
18. In the result, the Criminal Appeal is partly allowed and the Judgment of the trial Court dated 07.07.2011 in S.C.No.428 of 2010 acquitting the 1st respondent/A1 for the offence punishable under Section 302 of IPC is set aside. A.1 is found guilty for the offence punishable under Section 302 of IPC and is accordingly convicted and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/-, in default to suffer S.I for six months. However, the finding of acquittal recorded by the trial Court against A.1 for the offences punishable under Section 498-A of IPC and 3 & 4 of D.P.Act is confirmed. M.Os.1 and 2 shall be destroyed after expiry of appeal time. A.1 is directed to surrender before the trial Court to serve the sentence of imprisonment imposed by this Court. 19
Pending miscellaneous petitions, if any, shall stand closed.
________________________ JUSTICE K.LAKSHMAN _________________________ JUSTICE P.SREE SUDHA DATE: 13.12.2023 tri