Telangana High Court
The State Of Andhra Pradesh, vs Gundekari Yadagiri, on 16 February, 2024
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.1087 of 2014
JUDGMENT:
(per Hon'ble Smt. Justice P.Sree Sudha) This Criminal Appeal is filed against the Judgment dated 20.05.2011, in S.C.No.56 of 2010 passed by the learned IV - Additional Sessions Judge (FTC), Warangal.
2. The case of the prosecution is that on 13.08.2009, the father of the deceased gave complaint stating that he performed the marriage of his elder daughter Gundekari Rajitha, aged about 28 years as on the date of incident with one Gundekari Yadagiri/accused about 12 years back and they blessed with one son and daughter. His son-in-law was doing Cooli work. About 2 years back, his son-in-law used to pick up quarrel with his daughter and beat her without any valid reason, as such mediation was conducted and elders also advised him not to repeat the same and later about 5 or 6 months back, he kept his daughter and son-in-law in a rented house, even then there is no change in the attitude of the accused. On 13.08.2009, at about 6:30 AM, his grandson namely Raju, aged about 12 years 2 came on to the road and stated that his father poured Kerosene on his mother and set her ablaze. Immediately, he along with some others went there and found his daughter with burn injuries and immediately shifted her to MGM hospital in 108 ambulance. His Son-in-law with an intention to kill his daughter, poured Kerosene and set her to fire. Therefore, requested the Police authorities to initiate action against him. It was received on 13.08.2009 at about 9:00 AM and registered a case in Cr.No.147/2009 under Section 307 of IPC and later when she succumbed to injuries, the Section of law was altered to 302 of IPC. Dying Declaration was recorded by the Magistrate on 13.08.2009, from 9:55 AM to 10:10 AM.
3. To prove the guilt of the accused, prosecution examined P.Ws.1 to 19 and marked Exs.P1 to P10 and also marked Ex.D1, Exs.C1 to C7 and M.Os.1 to 3. The trial Court after considering the oral and documentary evidence, acquitted the accused under Section 235(1) of Cr.P.C under Section 302 of IPC. Aggrieved by the said judgment, State preferred the present appeal.
4. The learned Public Prosecutor contended that in spite of the Dying Declaration deposed by the deceased in clear terms 3 against the accused, the trial Court erred in appreciating the evidence properly and acquitted him. He also contended that the evidence of P.Ws.3, 9 and 13 proves the case of prosecution, but the trial Court disbelieved their version and the Dying Declaration recorded by P.W.13 was also not considered. Therefore, requested the Court to set aside the Judgment of the trial Court.
5. Complainant is the father of the deceased. In his evidence, he reiterated the contents of Ex.P1-complaint and stated that accused was harassing his daughter and also suspecting her character, as such the matter was placed before the elders i.e., More Prabhakar and Atika Meeranna. On their advise, they were kept in a separate residence, even then there is no change in his attitude. In his Cross-examination he stated that he can affix his signature, but he could not write. Ex.P1 was scribed by someone else and he could not say the name of the scribe. It was suggested to him that he has not stated before the police that he extinguished the fire on his daughter, but he denied it. It was further suggested to him that he did not state before police that he raised the dispute about harassment made by the accused, but he denied it. He further stated that initially he along with his wife, accused and his wife and their children 4 lived jointly in his house till accused shifted his residence to a rented house. When accused stayed in his house, he treated his wife properly. He also stated that children of the accused were residing with him. It was suggested that when accused did not accept their proposal to keep his son with them, he falsely implicated him, but he denied it. He did not know whether accused had given any complaint against him on13.08.2009 or not.
6. P.W.2 is the mother of the deceased. She also stated regarding the attitude of the accused towards his daughter and his conduct before elders. She further stated that accused poured kerosene on his daughter and set her ablaze. By the time they reached the house of accused, they found the deceased Rajitha burnt with flames and lying on the ground. On enquiry, they came to know that accused poured kerosene and set fire to her. She also stated that her daughter was not in a position to speak. Her husband was present by the side of her daughter when the learned Magistrate recorded her statement. Police personal were also present along with the Magistrate.
7. P.W.3 is the son of the deceased studying 8th class and he is having one younger sister aged about 6 or 7 years. The 5 learned Judge, after posing preliminary questions to him, recorded his statement, in which he stated that accused is his father and deceased is his mother. He also stated that his father poured kerosene on his mother and set fire to her. Immediately, he rushed outside and informed the same to one Latike Mahender, Latike Rajeshwar Rao, Latike Veeranna, Latike Nagesh and Gurjala Srinivas. They came to the house of deceased, extinguished fire and shifted her to hospital. It was suggested to him that he was studying at Atmakur and he was not present in the house at the time of incident, but he denied it. P.W.4 is one of the elder, who conducted Panchayat. He stated that in the Panchayat held before him, they advised the accused to reside separately along with his wife. He stated that Mahender reached first to the house of accused and tried to extinguish fire. In the meanwhile, they also went there.
8. P.W.5 is More Prabhakar. He stated that prior to the incident, deceased informed them that accused is suspecting her character and accused stated that he wants to reside separately. Accordingly, they advised them to live separately. He also stated that when they were informed about setting fire to the deceased, they rushed to the house of accused and found her with burn injuries. More Rajeshwar Rao and Asike 6 Rajeshwar Rao, extinguished the fire. P.W.6 is More Rajeshwar Rao. He clearly admitted that he rushed to the house of accused and later deceased was shifted to the hospital and she died after 3 days of incident. P.W.7 is the Photographer, who took photographs under Ex.P2. P.W.8 is another photographer, who took the photographs of the deceased in the mortuary of MGM Hospital, Warangal and the same were marked under Ex.P3. P.W.9 is Asike Mahender. He stated that his house is situated at back side of the house of accused, as such he can see whatever things happens in the backyard of the house of the accused. He also stated that accused was suspecting the character of his wife, as such they advised him to change his attitude. He stated that accused poured kerosene on his wife and set her ablaze. He also stated that he noticed while accused setting fire to his wife with a firewood stick, which was removed from the oven (Kattela Poyyi). Immediately, he rushed towards her and covered her with bed sheet and extinguished fire on her, but in the Cross-examination, he stated that he has not stated regarding extinguishing of fire with the bed sheet to the police.
9. P.W.10 did not support the version of prosecution. He simply stated that he underwent heart operation and he did not know the details of the death of the deceased. He is the owner of 7 the house, in which deceased and accused were residing. They lived in his house as tenants for a period of six or seven months. In the Cross-examination, he stated that Police examined him in his house at Tirumalagiri, after the death of Rajitha. He came to know about the Panchayats that took place between accused and his wife through elders. P.W.11 is the Panch witness for scene of offence panchanama. P.W.12 is the Panch witness for inquest panchanama. He stated that he did not know how the deceased sustained burn injuries. P.W.13 is the Magistrate, who recorded the statement of the deceased. She stated that duty doctor certified that patient is conscious, coherent and in a fit state of mind to give statement and she also put some preliminary questions to ascertain whether she was in a fit state of mind to give statement. As both the hands of the deceased were burnt, she took the impression of Right Leg Toe of the deceased in her statement. P.W.14 is the Doctor, who conducted autopsy over the dead body of the deceased. He issued Post Mortem Examination report under Ex.P8 and opined that cause of death is due to burns. P.W.15 is another Panch witness for scene of offence panchanama and M.Os.1 to 3 were seized in his presence. P.W.16 is the A.S.I of Police, who received Ex.P1- complaint and registered a case in Cr.No.147 of 2009, under Section 307 of IPC and issued FIR under Ex.P9. He recorded the 8 statement of the accused in MGM hospital and registered a case in Cr.No.148 of 2009 under Section 324 R/w.34 of IPC for the injuries sustained by accused and handed over the investigation to S.I of Police for further investigation.
10. P.W.17 is the S.I of Police, who recorded the statements of P.Ws.2, 3, 4, 5 and 6. It was suggested to him that they suppressed the complaint of the accused given by him earlier to the complaint of P.W.1, but he denied it. P.W.18 is the Inspector of Police, who conducted further investigation and filed charge sheet and contradictions in the evidence of P.W.9 were elicited from him. P.W.19 is the Inspector of Police, who collected FSL report under Ex.P10 and filed charge sheet. The trial Court after considering the oral and documentary evidence, held that Ex.P7 is in the printed proforma and the duty doctor who signed on it was not sighted as eye witness. The endorsement of the doctor that she was in conscious and coherent is also in printed form. P.W.2 stated that deceased was not in a position to speak, as she sustained 92% burn injuries, but in Ex.P7, it was mentioned that declarant was in a fit state of mind to give statement, and thus trial Court disbelieved the Dying Declaration and considering the contradictions in the evidence of eye witnesses and also the complaint given by the accused, 9 found accused not guilty for the offence under Section 302 of IPC.
11. Now it is for this Court to see whether the Judgment of the trial Court is on proper appreciation of facts or not.
12. 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 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 10 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 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 11 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.
13. The case of the prosecution is that accused poured kerosene on his wife and set her ablaze and their son aged about 12 years informed the same to P.W.1 and other persons who are on the road, immediately after the incident. Many of them rushed to the spot and shifted her to hospital. The deceased gave Dying Declaration and died after 3 days. The Hon'ble Apex Court in the case of Surinder Kumar Vs. State of Haryana, 1 has laid down several principles governing Dying Declaration, which reads as follows:
1
(2011) 10 SCC 173 12
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.
(ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the 13 deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted.
14. No doubt, in the Dying Declaration she clearly stated that her husband was suspecting her fidelity. On the date of incident, in the morning at about 6:00 AM, he poured kerosene and set her to fire and neighbors extinguished the fire and shifted her to hospital. She is having one daughter and son. She clearly stated that her husband is the reason for her death, but the learned Counsel for the accused mainly contended that the endorsement regarding conscious and coherent was not made by the doctor in his own handwriting, but it was in printed proforma prior to the recording of the Dying Declaration. After recording the Dying Declaration, though it was specifically stated that the Magistrate, Doctor, Nurse and attender were only present at the time of recording the Dying Declaration, P.W.2 in her evidence stated that her husband and police 14 personal were also present while recording the statement. No doubt, conviction can be given basing on the Dying Declaration given by the deceased in view of sanctity attached to the last words of the deceased, but while recording the statement it is for the Magistrate to take all precautions. Admittedly, she sustained 92% burn injuries and it should be ascertained whether she was conscious, coherent and in a fit state of mind to give statement or not. It is for the doctor to make an endorsement before recording the statement and after recording the statement with his own handwriting. Though the doctor signed in the said statement before and after recording the statement, the said words were already in the printed proforma, as such prosecution failed to prove whether the patient was conscious and coherent while recording the Dying Declaration, as such merely basing on the Dying Declaration, conviction cannot be given to the accused.
15. The Hon'ble Apex Court in the case of Nikhil Chandra Mondal Vs. State of West Bengal, 2 held that if two reasonable conclusions are possible on the basis of evidence on record, appellate Court should not disturb the finding of acquittal recorded by the trial Court.
2 2023(3) SCC (Cri) 63 DB 15
16. There is double presumption in favour of accused. Presumption of innocence available to him under fundamental principle of criminal jurisprudence is that every person shall be presumed to be innocent, unless he is proved guilty by a competent Court of law. As accused is acquitted presumption of innocence is further reinforced, reaffirmed and strengthened by the Court.
17. P.W.3 is the son of the deceased. He was eye witness to the occurrence. Immediately after the incident, he informed the same to the elders who were standing on the road at the time of incident, but it was suggested that he was not in the village at the time of incident, but P.Ws.1 and 4 stated that P.W.3 informed to them about the incident, as such the presence of P.W.3 in the village at the time of incident cannot be ruled out. Everyone stated that accused poured kerosene on his wife and set her ablaze. Though, P.W.9 stated that accused picked up a firewood stick from oven (Kattelapoyyi) and set her to fire, he did not state about pouring of Kerosene on her. P.W.3 stated that at the time of incident, his mother was cooking food. So also, in the evidence of P.W.17, it was stated that P.W.3 stated only the name of Mahender, but not the names of other members. P.W.2 16 did not state before the police that her grandson approached him and informed about the incident. P.W.3 did not state before him that his father suspected the character of his mother. So also, P.W.6 did not state that they advised the accused to reside separately. In a Criminal Jurisprudence, it is for the prosecution to prove the guilt of the accused beyond reasonable doubt, if there is any doubt, the benefit of doubt shall be extended to the accused. In this case, P.W.3 is the only eye witness, but he has not clearly stated that his father set his wife ablaze by picking up a firewood from oven (Kattelapoyyi). Even the deceased in her Dying Declaration simply stated that her husband poured kerosene on her and set her ablaze. P.W.1 stated that when deceased and accused were residing in his house, they lived happily and on the advise of the elders, he kept them separately from the past 6 months prior to the incident. The trial Court discussed the entire evidence at length and rightly acquitted the accused and this Court finds no reason to interfere with the Judgment of the trial Court.
18. In the result, the Criminal Appeal is dismissed, confirming the Judgment of the trial Court dated 20.05.2011, in S.C.No.56 of 2010.
17
Pending miscellaneous petitions, if any, shall stand closed.
________________________ JUSTICE K.LAKSHMAN _________________________ JUSTICE P.SREE SUDHA DATE: 16.02.2024 tri