Telangana High Court
Shaik Chand Pasha, Hyd., vs The State Of Telangana, Rep Pp., on 5 November, 2024
HON'BLE SRI JUSTICE K.SURENDER
And
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
CRIMINAL APPEAL No.89 OF 2016
JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. The appellant/A1 was convicted for the offence under Section 302 IPC and sentenced to life imprisonment vide judgment in S.C.No.374 of 2011 dated 29.10.2015 passed by the VIII Additional District and Sessions Judge, at Medak. Questioning the said conviction, present appeal is filed.
2. Briefly, the case of the prosecution is that A1 along with A2 to A5 have conspired and murdered the deceased who is the husband of A5. The reason for the murder is that A1/appellant and A5 were having an affair and the deceased objected to it. For the said reason, there was a fight in between the appellant, deceased and A5. The deceased was kidnapped from Lakdikapool by A1 to A4 and put in an auto on 26.12.2010. He was taken near a village in Medak District. The deceased was dragged out of the auto and A1 poured kerosene and set deceased on fire. The said incident was witnessed by P.W.2. Hearing P.W.2 shout and also seeing other villagers, all the accused left. P.W.2 did not identify any of the accused.
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3. P.W.2 along with other villagers shifted deceased to the Medak Government Hospital. Requisition was given by Sub- Inspector of Police to P.W.3, Tahsildar of Medak, for recording the Dying Declaration of the deceased. Around 9.35 p.m, on the same day, P.W.3 went to the hospital and the duty Doctor/P.W.4 having certified that the deceased was conscious and in a sound state of mind, P.W.3 recorded the statement/ Dying Declaration. In the statement made to P.W.3, the deceased narrated that the appellant was having illicit relation with his wife/A5. A1 and three others kidnapped him and took him to Ralamadugu village, beat him and the appellant poured kerosene and set him ablaze. Hearing the deceased crying, the appellant and others fled. Left thumb impression of the deceased was taken on the Dying Declaration/statement recorded by P.W.3, which is Ex.P2. After recording statement also P.W.4 endorsed that the deceased was in a fit state of mind during the statement being recorded.
4. The deceased died on 29.12.2010 while undergoing treatment. Ex.P1 complaint was filed by the brother of the deceased P.W.1 on 30.12.2010 alleging that the appellant and others have killed the deceased.
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5. The police, having conducted investigation, filed charge sheet against the appellant/A1 and A2 to A5. Learned Sessions Judge having framed charges for the offences of kidnapping and murder of the deceased, examined relevant witnesses. Learned Sessions Judge found that the prosecution has failed to prove the complicity of A2 to A5 and accordingly, acquitted them.
6. Learned counsel appearing on behalf of the appellant mainly relied on the Dying Declaration and the evidence of P.W.12, who is the Doctor, who conducted autopsy of the dead body. According to the Doctor/P.W.12, the injuries were ante-mortem mixed flame burns preset all over body except scalp and soles of both feet. The cause of death is due to the shock due to burns. Ex.P15 is the report.
7. Learned counsel submits that when there are burns all over the body except scalp and soles, as stated by P.W.12, the question of deceased putting thumb impression on the Dying Declaration recorded by P.W.3 does not arise. Learned counsel relied on the judgment of the Hon'ble Supreme Court in the case of State of Punjab v. Gian Kaur and another 1, wherein it is held as follows:
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AIR 1998 Supreme Court 2809 4 "5. The High Court disbelieved the dying declaration on the ground that even though according to the medical evidence Rita had 100% burns, the thumb mark of Rita appearing on the dying declaration had clear ridges and curves. The High Court found the evidence of Dr Ajay Sahni-PW 1 not reliable as he failed to satisfactorily explain how such a thumb mark could appear on the dying declaration when Rita had 100% burns over her body. The High Court relied upon the deposition of Doctor Aneja, who had performed the post-mortem and who has categorically stated that there were 100% burns over her body and both the thumbs of Rita were burnt. In view of such inconsistent evidence, the High Court was right in giving benefit of doubt to the respondents. It cannot be said in this case that the High Court has taken an unreasonable view."
8. As seen from the judgment, the Hon'ble Supreme Court held that when there was 100% burns all over the body, the question of clear ridges and curves appearing on the thumb impression would not arise, on such basis, both the Courts below had acquitted the appellant and upheld by the Hon'ble Supreme Court.
9. Learned counsel also relied on the judgment in the case of Abhishek Sharma v. State (Govt.of NCT of Delhi) 2. Learned counsel emphasized on paras 11 and 34 of the judgment. The Hon'ble Supreme Court found that when there is no evidence of light to view the accused or that there was any kind of animosity in between the accused and the deceased, the Hon'ble Supreme Court extended benefit of doubt.
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10. Learned counsel also relied on the judgment in the case of Nand Lal and others v. State of Chattisgarh 3. In the said judgment also, the Hon'ble Supreme Court laid emphasis on there being no light during night time when incident happened. The Hon'ble Supreme Court held that the evidence of witnesses can be characterized as (i) wholly reliable one (ii) wholly unreliable; (iii) neither wholly reliable nor wholly unreliable. Counsel argued that in the present case, except the evidence of the deceased, there is no other evidence and since recording of the statement of the deceased by P.W.3 is doubtful, conviction has to be set aside.
11. Learned Additional Public Prosecutor defended the findings of the learned Sessions Judge.
12. In the present facts, the motive for murder was affair in between the appellant and A5, who is the wife of the deceased. Even according to the evidence of P.W.1, brother and also the complainant, there was quarrel in between the appellant and the deceased on account of the appellant having an affair with his wife/A5. It cannot be said that A1 is a stranger to the deceased. 3 (2023) 10 SCC 470 6 Even on the date of the incident, according to the deceased, he was taken from Lakdikapool area of Hyderabad and travelled a considerable distance till Medak, which is more than 100 kms from Hyderabad and thereafter, he was set on fire by pouring kerosene by A1. The question of there being no light when incident has taken place or that the identity by accused being doubtful as argued by the learned counsel does not arise. Though, benefit of doubt was extended to A2 to A5 that in itself would not absolve or cannot be a ground to acquit the appellant.
13. There is no reason why P.W.3, who is the responsible officer would record something that was not stated by the deceased. The deceased was taken to the hospital by the villagers and there P.W.3 was requisitioned by P.W.4 Duty Doctor. P.W.3 went there and P.W.4, who was working as Medical Officer was present when the statement was recorded. Even after recording the statement of the deceased, P.W.4 endorsed regarding the state of mind of the deceased that he was in a position to give the statement. There is no reason why the evidence of two responsible officers P.Ws.3 and 4 had to be disbelieved.
14. The main thrust of the argument of the learned counsel for the appellant was that on the basis of the evidence of the 7 Doctor/P.W.12, all other parts of the body were burnt except scalp and soles. It cannot be assumed that the thumb was totally burnt. In the case relied on by the learned counsel in the case of Gian Kaur's case (supra), it was specifically mentioned that there were 100% burns all over the body and thumbs were burnt. Similar is not the case on hand. On facts, the present case differ. Unless it was asked by the counsel before the Court below or it was shown that the thumbs were completely burnt, the question of assuming that the thumbs were burnt on the basis of P.W.12's evidence that "Antemortem mixed flame burns present all over body except scalp and soles of both feet" is incorrect.
15. There are no grounds to interfere with the well reasoned judgment of the trial Court.
16. Accordingly, Criminal Appeal is dismissed.
__________________ K.SURENDER, J _________________________________ ANIL KUMAR JUKANTI, J Date : 05.11.2024 kvs