Telangana High Court
The State Of Telangana.,Rep.,Pp vs Ambati Srinivas And 3 Others on 3 September, 2024
Author: P. Sam Koshy
Bench: P.Sam Koshy, N.Tukaramji
IN THE HIGH COURT FOR THE STATE OF TELANGANA:
HYDERABAD
***
CRIMINAL APPEAL No.1237 of 2016
Between:
The State of Telangana
rep. by the Public Prosecutor
Appellant
VERSUS
Ambati Srinivas and Others
Respondents
JUDGMENT PRONOUNCED ON: 03.09.2024
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
__________________
P.SAM KOSHY, J
Page 2 of 22
* THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
+ CRIMINAL APPEAL No.1237 of 2016
% 03.09.2024
# Between:
The State of Telangana
rep. by the Public Prosecutor
Appellant
VERSUS
Ambati Srinivas and Others
Respondents
! Counsel for Appellant(s) : Mr. Syed Yasar Mamoon,
learned Additional Public
Prosecutor.
^Counsel for respondent(s) : Mr. A.Bhupathi Reddy, learned
counsel, representing
Mr.Papaiah Peddakula.
<GIST:
> HEAD NOTE:
? Cases referred
1) 2023 SCC OnLine SC 1060
2) 2024 SCC OnLine SC 941
3) (2008) 5 SCC 468
4) 2010 8 SCC 514
5) (2013) 2 SCC 224
6) 2024 SCC OnLine SC 481
7) (1984) 4 SCC 116 = 1984 INSC 121
Page 3 of 22
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
CRIMINAL APPEAL No.1237 of 2016
JUDGMENT:
(per the Hon'ble Sri Justice P. SAM KOSHY) Heard Mr. Syed Yasar Mamoon, learned Additional Public Prosecutor for the appellant - State and Mr. A.Bhupathi Reddy, learned counsel, representing Mr.Papaiah Peddakula, learned counsel for the respondents - accused.
2. Aggrieved by the judgment of acquittal dated 27.01.2015 in Sessions Case No.468 of 2012 passed by the V Addl. District Judge at Bhongir, the instant appeal has been filed by the appellant - State.
3. Vide the impugned judgment, the Trial Court found accused No.1 not guilty for the offence punishable under Section 498-A and 309 of IPC. At the same time, accused Nos.2 to 4 were also found not guilty for the offence punishable under Section 498-A and 302 read with Section 109 of IPC and all the accused persons stood acquitted of all the charges leveled against each one of them. Page 4 of 22
4. The case of the prosecution, in brief, is that the deceased Ambati Manasa was the wife of accused No.1. It is the case of the complainant (father of the deceased) that accused No.1 and his daughter initially had a happy married life for about six months time. Thereafter, accused No.1 started harassing deceased on the ground of dowry and he was continuously asking for additional dowry of Rs.3,00,000/-. The complainant did manage to pay some amount to accused No.1 so as to ensure that his daughter is not harassed. Yet accused No.1 continued to harass the deceased and used to often assault her and also used to doubt the fidelity of his wife. Suddenly, on 23.04.2012 at around 02:00 A.M., the complainant received a telephonic message that his daughter suffered burn injuries and she has been shifted to Image Hospital, Madhapur, Hyderabad, for treatment. The complainant immediately rushed to the Image Hospital and found burn injuries all over the body of the deceased except on her head. It was further stated by the complainant that on enquiry, the deceased told him that while she was lying on the bed and was feeding her infant child, accused No.1 poured kerosene on her and lit fire. Subsequently, he informed the police authorities. However, after about seven days of treatment, his daughter died because of burn injuries. According to the complainant, accused No.1 was Page 5 of 22 instrumental in burning his daughter to death. At the same time, accused Nos.2 to 4 were all responsible for continuous harassment, ill-treatment and torturing the deceased on the demand of dowry.
5. Based on the complaint of the father of the deceased, the Police Station, Bibinagar at District Nalgonda lodged an FIR with Cr.No.62 of 2012 dated 24.02.2012 was registered and investigated upon. After investigation a charge sheet was filed and subsequently the matter was put to trial before the Court of V Addl. District Judge at Bhongir where the case was registered as S.C.No.468 of 2012.
6. The prosecution in all examined as much as sixteen witnesses and exhibited as many as fourteen documents. There were no witnesses examined, neither were there any documents marked in support of defence. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C, and the Trial Court after hearing the learned counsel appearing on either side, finally passed the impugned judgment by acquitting the accused persons of all the charges leveled against them.
7. Challenging the said impugned judgment of acquittal, the learned Additional Public Prosecutor contended that it is a case Page 6 of 22 where the Trial Court has committed an error in not properly appreciating the dying declaration of the deceased while acquitting the accused persons. The learned Additional Public Prosecutor heavily relied upon the two dying declarations of the deceased recorded first by the police authorities immediately after the incident and secondly that which is recorded by the Judicial Magistrate subsequently on the same day. That the entire case of prosecution rests upon the two dying declarations and where the statement of the deceased in the two dying declarations are consistent and is ample proof of accused No.1 being instrumental in setting the deceased on fire, resulting in burn injuries which the deceased suffered and also in respect of the accused persons all of whom harassed the deceased continuously for a long time on some pretext or the other, primarily on the ground of dowry and also suspecting fidelity of the deceased.
8. It was also the contention of the learned Additional Public Prosecutor that the dying declarations also stands proved by the two officers who had recorded the same. That those officers are independent persons and therefore there is no reason for the Trial Court to have disbelieved the same and on that ground also the impugned judgment warrants interference. Page 7 of 22
9. Learned Additional Public Prosecutor strongly contended that since the two dying declarations stand duly proved before the Trial Court and the two officers who had recorded the dying declarations have also been subjected to cross-examination wherein nothing much could be elicited in their cross-examination to disbelieve their contention. Therefore, the finding of the Trial Court disbelieving the aforesaid two dying declarations deserves to be held as improper and bad in law and the judgment of acquittal disbelieving the two dying declarations deserves to be set aside.
10. At this juncture it would relevant to take note of certain admitted facts which are recovered in the course of recording of evidences.
11. PW.1, the complainant, who is said to have visited the deceased at the hospital on the same day of the incident in his examination-in-chief before the Court stated as under:
"I rushed to IMAGE Hospital and I found burn injuries all over the body except the head. On enquiry, she informed me that while she was lying on the bed and breast feeding her infant child, A-1 poured kerosene on her and lit fire.
Deceased Manasa died while undergoing treatment after seven days. I attended on deceased Manasa for Page 8 of 22 seven days. A-12 to A-4 beat deceased Manasa with cheppal while A-1 caught-hold her one year prior to death of deceased Manasa, asking her to leave their house and to commit suicide."
12. At the same time, PW.1 in his cross-examination had stated as under:
"I could not speak with deceased Manasa as she was in serious condition and I was not allowed to go near by her.
Deceased Manasa gave the statement to the Magistrate to that effect. She also informed me on the third day after admitting in the hospital. That A1 poured kerosine on her and set her ablaze at 12.00 mid night while she was lying on the bed."
13. Next coming to the dying declarations, it would reveal that two dying declarations have been recorded on the same day by two different authorities. One recorded by the ASI of Bibinagar Police Station at around 5:00 P.M. and second dying declaration recorded by the IV JFCM, Panjagutta, Hyderabad, on the same day at around 5:20 P.M. From the evidence of PW.1 who had reached the hospital immediately after the deceased was brought to hospital. The deceased was not in a condition to speak and was very serious and even he was not allowed to go near her. Such being the Page 9 of 22 condition, if we look at the two dying declarations it will clearly give rise to certain serious doubts on the two statements. The first doubt arises on account of both dying declarations verbatim same which in the opinion of the Bench is very difficult to accept, particularly taking into consideration the fact the deceased had been admitted with 70% burn injuries over her body. Under the said circumstances she could not have been in a condition to speak so elaborately with so minute details. Secondly, in both the dying declarations the deceased has made a statement that it was she who had doused kerosene on her body from a kerosene lamp available in the house. This statement of the deceased is just in contradiction to the statement given by PW.1 who tried to make a statement that the deceased informed her that it was accused No.1 who had poured kerosene and lit fire. Third reason to doubt the dying declarations is the question No.3 put to the deceased and the answer she gave to it to the Judicial Magistrate, which again for ready reference is reproduced herein under:
"3. Do you tell anything more ?
Ans : Madam, my husband is responsible for the burn injuries sustained by me. If he had not lit the empty kerosene lamp, I would not have received the burn injuries on my body."Page 10 of 22
The aforesaid answer of the deceased in fact gives rise to a possibility of the deceased getting caught fire accidentally.
14. Undoubtedly in her dying declaration, both to the ASI as also the Judicial Magistrate she has accepted that it was she who had doused kerosene on her body. She further accepted in both her statements that she slept on the floor with kerosene doused clothes. At the end she says that if her husband / accused No.1 would not had lit the empty lamp, she would not have received burn injuries. This in other words means that accused No.1 lit the kerosene lamp and not the deceased. Since it was dark around midnight, because of kerosene having got spilled over the entire area, the kerosene must have caught fire and the deceased also in the process caught fire. As a result of the same the deceased suffered burn injuries.
15. In addition, there also seems to be a conflicting evidence when compared to the statement of PW.1 and also the statement of the deceased and if all these statements have to be taken note of along with the categorical statement of the deceased, it was she herself who had doused her with kerosene. This gives rise to a great element of doubt so far as the dying declarations given by Page 11 of 22 the deceased. In the said circumstances if the Trial Court has given the benefit of doubt to the accused, the same cannot be found fault with.
16. It would be relevant at this juncture to refer to a couple of judgments of the Hon'ble Supreme Court on this subject matter. The Hon'ble Supreme Court in the case of Irfan alias Naka v. State of Uttar Pradesh 1 held as under; viz, "44. The mode and manner, in which the dying declarations came to be recorded, is also something which creates a doubt, as regards its truthfulness and trustworthiness. Although, the Investigating Officer says that the recording of the dying declarations was video-graphed and the CD has been exhibited in evidence yet it is very important to determine the evidentiary value of the same.
48. The justification for the sanctity/presumption attached to a dying declaration, is two fold; (i) ethically and religiously it is presumed that a person while at the brink of death will not lie, whereas (ii) from a public policy perspective it is to tackle a situation where the only witness to the crime is not available.
57. This Court in Muthu Kutty v. State by Inspector of Police, T.N., (2005) 9 SCC 113, while discussing the decision in Woodcock (supra) referred to above had 1 2023 SCC OnLine SC 1060 Page 12 of 22 cautioned the courts to ensure that a dying declaration is reliable before relying on it, with the following observations : -
14. ... 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 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 Page 13 of 22 requiring corroboration is merely a rule of prudence. ..."
(Emphasis supplied)
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?Page 14 of 22
(viii) Whether, the dying declaration in itself is a manifestation/fiction of the dying person's imagination of what he thinks transpired?
(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?
63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant.
64. It is unsafe to record the conviction on the basis of a dying declaration alone in the cases where suspicion, like the case on hand is raised, as regards the correctness of the dying declaration. In such cases, the Court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence. The evidence and material available on record must be properly weighed in each case to arrive at an appropriate conclusion. The reason why we say so is that in the case on hand, although the Page 15 of 22 appellant-convict has been named in the two dying declarations as a person who set the room on fire yet the surrounding circumstances render such statement of the declarants very doubtful."
17. Further, the Hon'ble Supreme in the case of Rajendra v. State of Maharashtra 2 held at paragraph Nos.25 and 26 as under:
"25. The law relating to dying declaration is now well settled. Once a dying declaration is found to be authentic inspiring confidence of the court, then the same can be relied upon and can be the sole basis for conviction without any corroboration. However, before accepting such a dying declaration, court must be satisfied that it was rendered voluntarily, it is consistent and credible and that it is devoid of any tutoring. Once such a conclusion is reached, a great deal of sanctity is attached to a dying declaration and as said earlier, it can form the sole basis for conviction.
26. Section 32(1) of the Indian Evidence Act, 1872 deals with dying declaration. Since the said provision is relevant, it is extracted hereunder:
[32.] Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become 2 2024 SCC OnLine SC 941 Page 16 of 22 incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:--
(1) When it relates to cause of death. - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
18. The Hon'ble Supreme Court in the case of Amol Singh v. State of Madhya Pradesh 3 clarified that it is not the plurality of the dying declarations that matter. On the contrary, it is the reliability of a dying declaration which is significant. If there are inconsistencies between one dying declaration and the other, the Court has to examine the nature of the inconsistencies i.e. whether those are material or not.
3 (2008) 5 SCC 468 Page 17 of 22
19. The Hon'ble Supreme Court also in the case of Lakhan v. State of Madhya Pradesh 4 held that where there are multiple dying declarations with inconsistencies between them, the Court would have to scrutinize the facts very carefully and thereafter take a decision as to which of the declarations is worth reliance.
20. Again, in the case of Ashabai v. State of Maharashtra 5, the Hon'ble Supreme Court observed that when there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated independently on their own merit as to the evidentiary value of each. One cannot be rejected merely because of certain variations in the other.
21. So far as interfering with the judgment of acquittal in an appeal by the Trial Court, it has been held by the Hon'ble Supreme Court in a catena of decisions that unless there is substantial strong evidence which is not been appreciated by the Trial Court and where the commission of offence by the accused is glaringly established, the judgment of acquittal is not be interfered as a matter of routine. The Hon'ble Supreme Court in 4 2010 8 SCC 514 5 (2013) 2 SCC 224 Page 18 of 22 the case of Ballu and Another v. State of Madhya Pradesh 6 in paragraph Nos.6 to 9 observed as under:
"6. Undoubtedly, the prosecution case rests on circumstantial evidence. The law with regard to conviction on the basis of circumstantial evidence has very well been crystalized in the judgment of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra 7, wherein this Court held thus:
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656]. It may be useful to extract what Mahajan, J.
has laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]:
6
2024 SCC OnLine SC 481 7 (1984) 4 SCC 116 = 1984 INSC 121 Page 19 of 22 "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
7. It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The Court holds that it is a primary principle that the accused 'must be' and not merely 'may be' proved guilty before a court can convict the accused. It has been held that there is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved'. It has been held that the facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. It has further been held that the circumstances should be such that they exclude every possible hypothesis except the one to be proved. It has been held that there must be a chain of evidence so complete as not to leave any reasonable Page 20 of 22 ground for the conclusion consistent with the innocence of the accused and must show that in all human probabilities the act must have been done by the accused.
8. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.
9. Apart from that, it is to be noted that the present case is a case of reversal of acquittal. The law with regard to interference by the Appellate Court is very well crystallized. Unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warranted. Though, there are a catena of judgments on the issue, we will only refer to two judgments which the High Court itself has reproduced in the impugned judgment, which are as reproduced below:
"13. In case of Sadhu Saran Singh v. State of U.P. (2016) 4 SCC 357, the Supreme Court has held that:--
"In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and !aw. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage Page 21 of 22 of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. Appellate Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded."
14. Similar, In case of Harljan Bhala Teja v. State of Gujarat (2016) 12 SCC 665, the Supreme Court has held that:--
"No doubt, where, on appreciation of evidence on record, two views are possible, and the trial court has taken a view of acquittal, the appellate court should not interfere with the same. However, this does not mean that in all the cases where the trial court has recorded acquittal, the same should not be interfered with, even if the view is perverse. Where the view taken by the trial court is against the weight of evidence on record, or perverse, it is always open far the appellate court to express the right conclusion after re-appreciating the evidence If the charge is proved beyond reasonable doubt on record, and convict the accused.""
22. In the given factual backdrop and the judicial precedents flowing from the Hon'ble Supreme Court on the subject matter and also on interfering with the judgment of acquittal and for the Page 22 of 22 reasons narrated in the preceding paragraphs, we find it difficult to interfere with the judgment of acquittal.
23. The instant appeal thus fails and is accordingly dismissed.
24. As a sequel, miscellaneous applications pending if any, shall stand closed.
__________________ P.SAM KOSHY, J __________________ N.TUKARAMJI, J Date: 03.09.2024 Note: LR Copy to be marked.
B/o.GSD