Srimurthy Suresh, vs State Of A.P., Rep By Pp.,
2022 Latest Caselaw 4027 Tel

           HON'BLE SRI JUSTICE K.SURENDER

            CRIMINAL APPEAL No.308 OF 2009

JUDGMENT:

1. The appellant is convicted for the offence under

Section 304-II IPC and sentenced to undergo RI for a period

of seven years and also to pay fine of Rs.10,000/-, in

default, to suffer SI for one year and he is also convicted

under Section 498-A of IPC and sentenced to undergo RI for

two years and to pay fine of Rs.5,000/-, in default, to

undergo SI for six months, vide judgment dated 05.03.2009

in S.C.No.330 of 2007 passed by III Additional Sessions

Judge (FTC), Asifabad. Aggrieved by the same, the present

appeal is filed.

2. The case of the prosecution is that the deceased is the

wife of appellant/accused. P.W.1 is the father of the

deceased. The marriage of the deceased was performed with

the accused. At the time of marriage, Rs.1,80,000/-dowry

was given. She gave birth to a son. On 02.02.2007, P.W.1

was informed that his daughter received burn injuries and

immediately rushed to her house and extinguished the

flames with the help of blanket and also poured water.

Immediately deceased was shifted to hospital in an auto.

After first aid, deceased was shifted to Karimnagar hospital.

While taking her in an ambulance, the deceased informed

that the accused came around 12.00 night in drunken

condition and from 12.00 am to 3.00 a.m he questioned

about the illegal contacts and thereafter poured kerosene on

her and set fire.

3. The statement of deceased was recorded by police CCC

Naspur and crime 14/2007 was registered under section

307 and 498A of IPC. The police requested the concerned

Magistrate to record dying declaration. Accordingly, dying

declaration was recorded by P.W.10. P.W.10 stated that he

had taken the certification of the Doctor that deceased was

mentally fit to give her declaration. PW10 stated that

according to deceased, the accused was suspecting the

character of the deceased that she was having illegal

intimacy with others and for the said reason, poured

kerosene on her and ran away. Unable to bear the burns,

she came out of the house, by which time her uncle by

name Prabhakar(DW1), who was the neighbor came there

and telephoned to her parents. Thereafter, the parents and

sister brought her to Karimnagar Hospital. The statement

of the deceased was recorded by the Sub Inspector of Police

under Ex.P16. In the statement made to the police, she

stated that around 3.00 or 4.00 a.m, the appellant poured

kerosene on her and lit match stick while pouring kerosene,

some kerosene fell on his hands and his hands were also

burnt. On hearing cries and observing smoke one neighbor

Thirupathamma informed her parents. The reason for

setting fire was that the accused was suspecting her

character. Later the deceased was shifted to Osmania

General Hospital, where she died on 05.02.2007. The

Afzalgunj police registered crime under section 174 of IPC

under EXP 12. However CCC Naspur police after

concluding investigation, filed charge sheet against the

accused under Sections 302 and 498 A of IPC and

accordingly charges were framed for the said penal

provisions.

4. The trial Court having examined witnesses P.Ws.1 to

16 and having marked Exs.P1 to 19, convicted the accused

as stated supra.

5. Learned counsel for the accused would submit that

there are two contradicting dying declarations and same

cannot be relied upon to convict the accused. The dying

declaration made to the police is the result of tutoring by

the police. As seen from the record, immediately, after the

victim received burn injuries, she was shifted to Mancherial

Hospital. Though there was an outpost at Mancherial

Hospital, no complaint was lodged. During the period of

their travel from Mancherial to Karimnagar, the relatives,

who are the brother, father and sister tutored the deceased.

The said fact of tutoring is evident from the conduct of

P.W.1 not lodging any complaint at Mancherial.

7. Learned counsel for the accused further submits that

the both statements made by her are contradicting for two

reasons. One in the dying declaration made to Magistrate,

she stated that accused ran away from the house. However,

the statement made to police under Ex.P16, she did not

state anything about the husband running away. She in fact

stated that the husband received injuries. He further

submits that as per Ex.P16, one Thirupathamma came to

her rescue, however, the statement made before the

Magistrate, she stated that it was one Prabhakar (DW1) who

came to her rescue. For the said reasons, the conviction

recorded by the trial Court is liable to be set aside.

8. Learned Assistant Public Prosecutor submits that the

parents and the relatives of the deceased were pre occupied

with getting treatment for the deceased, for which reason, it

cannot be said that failure to lodge complaint at Karimnagar

will have any impact on the prosecution case. He further

submits that the deceased, who was the wife of the accused

would not be able to speak against her own husband and

would not falsely implicate her husband in criminal case.

For the said reasons, the finding of the learned Sessions

Judge cannot be interfered with.

9. As seen from the evidence of P.Ws.1, 2, 3, 4 and 5 who

are relatives of the deceased, they have not stated anything

about any kind of harassment that was meted out to the

deceased during her marriage. However, in the dying

declaration made before the Magistrate it was mentioned

that the accused was suspecting her character of having

illicit intimacy with others.

10. As seen from the evidence of P.W.3, who is the brother

of the deceased, he specifically stated that while they were

at Mancherial hospital for half an hour and Doctor was not

available, the deceased did not state anything about the

accused at Mancherial Hospital. P.W.1, who is the father of

the deceased also stated that he did not give any complaint

at Mancherial or Karimnagar. Further, P.W.1 stated that

when he went to the scene of offence, the accused was

present. However, he did not find any injuries on his

hands.

11. The person named in the dying declaration is

Prabhakar, who came to deceased's rescue is examined as

D.W.1 in the Court. He stated that the accused and the

deceased were living cordially after their marriage. On

02.02.2007 on hearing cries of the deceased, he rushed to

the spot and found that the deceased was on fire and

observed that the accused/appellant pouring water, for

which reason, the hands of the accused were also burnt.

He stated that the accused also went to the hospital and he

was admitted in the same hospital for treatment.

12. The reason for not giving any complaint at

Mancherial has not been explained by the prosecution.

Though the deceased was in the hospital at Mancherial, no

complaint was lodged either by P.W.1, the father of the

deceased or any of the relatives. However, the deceased was

taken to Karimnagar Hospital where Ex.P16 was recorded,

on the basis of which, First Information Report was

registered by the Police Station Naspur, Adilabad.

14. The said circumstance has to be viewed with

suspicion. Though, it was admitted by P.W.2, P.W.1 and

D.W.1 about the presence of the accused in the house,

however, the deceased stated that the accused had run

away. P.W.4 and D.W.1, who went to the scene of offence,

observed that the accused receiving burn injuries on hands

and poured water on the deceased and also covered her with

a blanket. However, P.W.4 was declared hostile to the

prosecution case.

15. The different versions given by the witnesses regarding;

i) the presence of the accused at the scene of offence; ii)

receiving of injuries by the accused on his hands and his

treatment in the hospital; iii) D.W.1 stating that the

accused received injuries while trying to extinguish the

flames on the deceased and also pouring water on her,

giving rise to a doubt regarding the exact manner in which

the incident had occurred. Though the police had filed

charge sheet for the offence under Section 302 IPC on the

basis of the statement recorded by the police under Ex.P16

and also under Ex.P9, statement recorded by the

Magistrate, the fact of presence of the accused and trying to

extinguish fire, creates doubt regarding the actual

happenings.

16. It is the specific case of the defence that the deceased

poured kerosene on herself and tried to commit suicide.

However, in the back ground of there being no compliant at

Mancherial, though the deceased was enquired about how

she received injuries but nothing was stated by PW.1- father

of the deceased and P.W.3- the sister of the deceased, it

casts any amount of doubt whether the case of the

prosecution case is correct. There is no doubt that P.Ws.1

and 2 accompanied the deceased from Mancherial Hospital

to Karimnagar Hospital before the two statements under

Exs.P16 and P9 were made by the deceased.

17. There was never any panchayat held or complaints

made against the accused regarding any kind of harassment

suspecting the character of the deceased. The said

circumstance has to be considered before convicting the

accused whether the burns was result of the accused

pouring kerosene on her or the deceased trying to commit

suicide.

18. The learned counsel submits that since there are no

allegations of any harassment against the accused after the

marriage, the accused has to be given benefit of doubt.

Further there is no explanation as to why there are

differences and the accused tried to commit suicide. For the

reason of there being material discrepancies in the

projection of the prosecution case to determine whether the

burns were result of the accused pouring kerosene and

setting fire or that she committed suicide, the conviction

recorded against the accused under Section 304-II IPC and

Section 498-A of IPC cannot be maintained.

19. In the result, the Criminal Appeal is allowed. The

judgment of the trial Court dated 05.03.2009 in S.C.No.330

of 2007 is set aside. Since the appellant is on bail, his bail

bonds stand cancelled. As a sequel thereto, miscellaneous

applications, if any, shall stand closed.

________________ K.SURENDER, J Date: 03.08.2022 kvs

HONOURABLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.308 of 2009

Date:03.08.2022

kvs