Telangana High Court
Peddinti Bhaskar , Pundari Kakshaiah, ... vs P.P., Hyd on 8 August, 2024
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THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SRI JUSTICE J. SREENIVAS RAO
CRIMINAL APPEAL No.511 OF 2015
JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. This appeal is filed aggrieved by the judgment dated 17.04.2015 in S.C.No.362 of 2012, on the file of III Additional District and Sessions Judge, Ranga Reddy District. The appellant was convicted for the offence under Section 302 of IPC and sentenced to life imprisonment.
2. Heard the learned counsel for the appellant/accused and Sri Jithender Rao Veeramalla, learned Additional Public Prosecutor for respondent-State.
3. Briefly, the case of the prosecution is that the appellant and the deceased who is the daughter of P.W.1 were married on 25.04.2012. After marriage, both appellant and the deceased lived for one month at her parent's house. At the time of marriage, dowry was also given. On the date of incident i.e.,15.07.2012 in the night after having dinner, the deceased slept in her parents house, since the house was small one and as she was having bad dreams, she asked her husband to permit her 2 to sleep with her mother. In this connection, the accused abused her and thereafter poured kerosene on her and lit her on fire. Unable to bear the pain, she shouted for help. Mother/P.W.1, P.W.2/neighbor and others took the deceased to the hospital where she died while undergoing treatment.
3. The Police having registered the case filed charge sheet for the offences under Sections 498-A, 302 of IPC and Sections 3 and 4 of Dowry Prohibition Act. Charges were framed for the said offences by the learned Sessions Judge and in support of prosecution, P.Ws. 1 to 10 were examined and documents Ex.P.1 to P.17 were also brought on record. Learned Sessions Judge found that though the witnesses including mother of the deceased turned hostile to the prosecution case, reliance can be placed on the dying declaration which was made by the deceased in the hospital and was recorded by the learned Magistrate/P.W.9. Accordingly, the appellant was convicted.
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4. Learned counsel appearing for the appellant would submit that P.W.1/mother herself has not stated anything against the accused. Though, she was declared hostile, her evidence cannot be brushed aside, only for the reason of hostility. Further, the prosecution has utterly failed to prove that the act of the accused was premeditated or that he entertained any intention of killing her. In fact, when the doors were broke open, the accused was found inside the room and the deceased was on fire. Thereafter, she was taken to the hospital.
5. Learned counsel submits that it is a case of suicide and alternatively argued that the case may fall within the four corners of 304-II of IPC, since there was no intention of causing such harm. Learned counsel further argued that the dying declaration solely cannot be made basis to infer guilt of the accused.
6. On the other hand learned Public Prosecutor submits that even according to witnesses, the accused was found in the room where the deceased was found on flames and thereafter, she was shifted to the hospital. In fact, the 4 witnesses stated that they broke open of the door since it was bolted from inside. That in itself would indicate that the appellant had poured kerosene on her and set her on fire with an intent to cause her death. In fact, dying declaration can be made sole basis for conviction and accordingly, the findings of the learned Sessions Judge cannot be interfered with, since they are reasoned.
7. Having gone through the record, P.W.1/mother, P.W.2/neighbor, P.W.3 who is the owner of the house and P.W.4/resident of the locality spoke about the burns received by the deceased, though they were declared hostile. All the four witnesses have consistently stated that the deceased and the accused were found in one room and the accused was found sleeping. Their opinion was that she poured kerosene on to herself and lit fire. The reason given by the witnesses was that the deceased was not interested in the accused and she was having relation with some other persons, for which reason she committed suicide.
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8. Though the witnesses were treated hostile and cross examined by the prosecutor, the presence of the accused with the deceased in the house and the room being bolted, further the deceased being on flames is not disputed by any of the witnesses. The deceased was taken to the hospital and a requisition was given to P.W.9/Magistrate for recording dying declaration. P.W.9 went to the hospital at 12.30 in the afternoon. Preliminary questions were asked by the learned Magistrate and being convinced that deceased was able to understand the questions and giving answers, started recording the statement. Even prior to the recording of the statement, the Magistrate has taken the opinion of the Doctor who endorsed that the patient was coherent and in fit state of mind to give her statement. When questioned as to what happened, the deceased stated as follows:
The dying declaration was given in Telugu language and translation is done by this Court as under:-
"Yesterday night my mother slept
separately in another house. My husband
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(appellant) came to me and stated that my mother slept in another house. Since I was getting bad dreams, I informed my husband that I wanted to go to my mother and sleep beside her. Then my husband abused me and poured kerosene on me. I did not shout. He lit fire with a match stick. Then I started shouting and my mother, my father's elder brother and other neighbours came there. That is what happened nothing else to say."
9. After recording the statement also, Doctor endorsed that the patient was conscious, coherent and in fit state of mind throughout the recording of her statement.
10. It has to be seen whether the dying declaration can be made sole basis for convicting the accused. During the course of trial, no witnesses were cross examined and also during 313 Cr.P.C. examination, nothing was stated regarding any tutoring by any of the relatives before the dying declaration was recorded. It is not the case that the deceased was not in a fit state of mind or was under any kind of influence to state against the appellant. 7
11. The Hon'ble Supreme Court in Irfan Vs. State of UP 1 held as under:-
"61. In India too, a similar pattern is followed, where the Courts are first required to satisfy themselves that the dying declaration in question is reliable and truthful before placing any reliance upon it. Thus, dying declaration while carrying a presumption of being true must be wholly reliable and inspire confidence. Where there is any suspicion over the veracity of the same or the evidence on record shows that the dying declaration is not true it will only be considered as a piece of evidence but cannot be the basis for conviction alone.
62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: -
(i) Whether the person making the statement was in expectation of death?
(ii) Whether the dying declaration was made at the earliest opportunity? "Rule of First Opportunity"
(iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?
(iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?
(v) Whether the statement was not recorded properly?
(vi) Whether, the dying declarant had opportunity to clearly observe the incident?
(vii) Whether, the dying declaration has been consistent throughout?
(viii) Whether, the dying declaration in itself is a manifestation / fiction of the dying person's imagination of what he thinks transpired? 1 2023 SCC Online SC 1227 8
(ix) Whether, the dying declaration was itself voluntary?
(x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?
(xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?"
12. The Hon'ble Supreme Court in Atbir vs. Government of NCT of Delhi 2 held as under:-
"In Muthu Kutty & Anr. Vs. State By Inspector of Police, T.N., (2005) 9 SCC 113, the following discussion and the ultimate conclusion are relevant which read as under:
"14. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with.
Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.
15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit 2 (2010) 9 SCC 1 9 state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence."
The same view has been reiterated by a three Judge Bench decision of this Court in Panneerselvam vs. State of Tamil Nadu, (2008) 17 SCC 190 and also the principles governing the dying declaration as summed up in Paniben vs. State of Gujarat , (1992) 2 SCC 474."
13. According to the prosecution case and the witnesses, the marriage of the appellant and the deceased had only taken place 5 months prior to the incident. There are no reasons as to why the deceased would give false statement implicating her husband. In fact, when the witnesses said about the accused being present in the room where deceased was burning, the appellant has not taken any steps even to put off the flames and the witnesses had to break open the door to enter into the room. It is highly improbable while assessing the situation that the husband was sleeping in the room bolted from inside and the wife was on flames. It is the case of accused that deceased 10 committed suicide. There are no reasons given to infer that there was any kind of fight preceding the act of burning or any other aspect is brought on record, for us to consider regarding the act of the appellant. Nothing was brought on record to remotely suggest that the burns were suicidal and not homicidal. P.W.1/mother though declared hostile did not say that the deceased committed suicide. She specifically stated that the deceased did not inform about cause of her burns. P.W.3/owner of house and P.W.4/neighbor stated that they came to know that the deceased committed suicide. All the three witnesses were declared hostile. However, their evidence is of no use to the defence. No questions were asked by defence when Doctor/P.W.6 was examined suggest that the manner in which the burns were received were suicidal.
14. Alternatively, the learned counsel for the appellant submits that the offence would fall within the ingredients of Section 302-II of IPC. As already discussed, the appellant was inside the room and bolted it from inside, the intention to cause death is apparent from the 11 circumstances of the case. There are absolutely no grounds to interfere with the conviction.
15. Accordingly, this Criminal Appeal is dismissed.
_________________ K.SURENDER, J ______________________ J. SREENIVAS RAO, J Date: 08.08.2024 dv