Telangana High Court

E.Ayyanna vs The State Of A.P., on 6 December, 2022

Bench: A.Venkateshwara Reddy, D.Nagarjun

HONOURABLE SRI JUSTICE A.VENKATESHWARA REDDY
                     AND
     HONOURABLE DR. JUSTICE D.NAGARJUN

              CRIMINAL APPEAL No.158 of 2014


JUDGMENT: (Per the Honourable Dr. Justice D. Nagarjun)

      This Criminal Appeal is filed aggrieved by the conviction

and sentence recorded for the offence under Section 302 of

Indian Penal Code in S.C.No.113 of 2011 as per the

Judgment dated 07.10.2013 of the learned III Additional

Metropolitan Sessions Judge, Hyderabad, solely on the basis

of dying declaration.


02.   The facts in brief are as follows:


      The deceased, after the death of her husband, started

living with the appellant. On 22.04.2009 at about 11:00 AM,

the appellant came to their house in drunken condition,

abused her, beat her and has poured kerosene on her body

and set her ablaze and went out by closing doors from

outside. On hearing hues and cries of the deceased, the local

people    have    rescued    her    by   pouring     water   on   her,
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extinguished flames and shifted her to Osmania General

Hospital, Hyderabad.


03.   LW15/Head Constable 5786 of P.S. Saidabad has

recorded the statement of the injured/deceased in the burns

ward of Osmania General Hospital, Hyderabad and on the

strength of the said statement of the deceased, PW8 Inspector

of Police, has registered a case in Cr.No.184 of 2009 under

Section 307 of Indian Penal Code against the appellant. On

22.04.2009 at 06:20 PM., the injured died of burn injuries

and thereby section of law was altered from Section 307 to

302 of Indian Penal Code, inquest was conducted on the dead

body of the deceased and post-mortem examination was

conducted. After completion of rest of the investigation and

on collection of all the documents, the charge sheet is filed

alleging that the appellant has committed the offence under

Section 302 of Indian Penal Code and the same was

numbered as S.C.No.113 of 2011.


04.   The learned III Additional Metropolitan Sessions Judge,

Hyderabad    had   framed   charges   against   the   appellant

punishable under Section 302 of Indian Penal Code.         The
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prosecution has examined 9 witnesses and marked Exs.P1 to

P13 and Mos.1 and 2. On behalf of the appellant, no witness

was examined and no document was marked.              On hearing

both sides, and on considering entire material available on

record, the trial Court has recorded the finding that the

appellant has found guilty for the offence under Section 302

of Indian Penal Code and sentenced to undergo Life

Imprisonment and also to pay fine of Rs.1,000/- and in

default of payment of fine, he shall undergo Simple

Imprisonment for two months.


05.    Aggrieved by the same, the present Criminal Appeal is

filed on the following grounds:


i.     The Judgment of the trial Court is contrary to law,

weight of evidence and probabilities of the case.

ii.    The trial Court has failed to consider that there were no

direct witnesses and there was no motive for the appellant to

commit the alleged offence.


iii.   The trial Court failed to consider that there is also

possibility of third person committing the offence.
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06.   Heard Smt. G. Jaya Reddy, learned legal-aid counsel for

the Appellant as well as Sri S.Ganesh, learned Assistant

Public Prosecutor for the State / Respondent.

07. Now the point for determination is:

Whether the Judgment of Conviction and Sentence dated 07.10.2013 passed in S.C.No.113 of 2011 on the file of the learned III Additional Metropolitan Sessions Judge, Hyderabad, is liable to be set side?

POINT:

08. There is no dispute that the deceased was living with

the appellant after the death of her husband and that the

appellant had no wife and thereby both of them were living

together as husband and wife, whereas the children of the

deceased were married and living separately along with their

family members.

09. As per the prosecution, on 22.04.2009 at about 11:00

AM., the appellant, who was in drunken condition, has

abused and beat the deceased and poured kerosene on her

body and set her ablaze and went away by closing doors from

outside. Later the neighbours, on hearing hues and cries of

the deceased rescued her and shifted her to hospital where

she subsequently died while undergoing treatment.

10. Ex.P1 is the statement of the injured/deceased

recorded by LW15/Head Constable 5786 of P.S. Saidabad at

Osmania General Hospital, Hyderabad, at 12:30 PM., on

22.04.2009, within 1½ hours after the incident, in the burns

ward of Osmania General Hospital, Hyderabad.

11. According to the statement of the deceased, which is

registered as FIR, after the death of her husband she has

been living for the last 20 years with the appellant and the

appellant used to harass her. On that day also the appellant

came home in drunken condition and while beating and

abusing her, the appellant took Mo.1 kerosene plastic bottle

and poured kerosene on her body and lit fire with match

sticks/MO.2.

12. During the course of trial, the prosecution though

examined PW1 to PW9, the crucial evidence is that of the

learned XII Additional Chief Metropolitan Magistrate,

Hyderabad who as examined as PW9. According to his

evidence, on 22.04.2009 at 03:25 PM., he received requisition

from Sub-Inspector of Police, Saibadad Police Station to

record the dying declaration of the deceased

Smt.E.Lakshmamma. He took the endorsement of Medical

Officer who was on duty to that effect that the

victim/deceased was conscious, coherent and in fit state of

mind. After satisfying that the injured/deceased was in a

position to understand the questions and give rational

answers, he has recorded the statement of the deceased. The

relevant portion of the statement recorded by the learned

Magistrate is as under:

"Today at 11:00 AM., my husband came to home in drunken state and abused me. He then, closed the doors of house, poured kerosene on my body and set fire to me. Then, I received these injuries. My husband consumes 'sara' everyday and he suspected that I have amount (paisalu) saved by me and I am not giving, as such the set fire to me".

The Duty Medical Officer by name

Dr.D.N.U.Annapurna, M.S., endorsed that the deceased was

conscious, coherent and in a fit state of mind while recording

the dying declaration. Learned Judicial Officer who has

recorded the statement was given suggestion in the cross-

examination that prior to recording of dying declaration the

relatives and local people were present and that the deceased

gave a false statement at their instance. He was also

suggested that prior to recording of dying declaration, the

deceased was tutored by her relatives and neighbours. There

is no clarity in the suggestion as to which relative or the

neighbourer was present and tutored her.

13. On going through the manner in which the dying

declaration was recorded by the learned Magistrate and on

considering the chief and cross examination of the learned

Magistrate, there is nothing which creates a doubt in respect

of accepting the dying declaration.

14. The contents of the dying declaration of the deceased

recorded by the learned Magistrate corroborates with the

statement of victim/deceased recorded by LW15/Head

Constable 5786 of P.S. Saidabad, on the basis of which FIR is

registered. Considering the contents of the dying declaration

recorded by the learned Magistrate, coupled with the

evidence and statement of victim given to the Head

Constable, there is no reason why the last statement of the

victim/deceased as recorded by the learned Magistrate

cannot be accepted.

15. The daughter of the deceased, who was examined as

PW.1, has deposed that she was not present in the house

when the incident happened and she came to know about the

death of her mother through her neighbours. Except that,

she has not attributed anything against the appellant,

thereby the appellant has chosen not to cross-examine this

witness. PW2, who is Social worker, and PW3, kirana

merchant, though produced as neighbours, could not

support the case of the prosecution and they were though

declared as hostile and were cross-examined by the learned

Assistant Public Prosecutor, nothing incriminating could be

elicited against the appellant.

16. PW4 is a mediator for inquest under Ex.P3, which was

conducted at Osmania General Hospital, Hyderabad and also

scene of offence panchanama Ex.P4 and recovery of Mo.1

kerosene plastic bottle and Mo.2 burnt match sticks. The

appellant has not disputed his evidence. PW5 and PW6 were

produced before the Court as witnesses for confessional

statement of the appellant, but they have not supported the

case of the prosecution.

17. PW7 is the Medical Officer who has conducted autopsy

over the dead body of the deceased on 23.04.2009 and gave

post-mortem examination report stating that the deceased

was suffered with 98% of burns and the death occurred on

account of 'shock due to burns'.

18. PW8, who is the Investigating Officer, has deposed in

respect of issuance of FIR under Ex.P9, basing on Ex.P8

statement of the deceased, deposed about recording of the

statements under Section 161 Cr.P.C., and conducting of

scene of offence panchanama and recovering material

objects, conducting of inquest panchanama, recording of

confessional statements of the accused, deploying

photographer to the scene of offence, recording of statement

of the witnesses and filing of the charge sheet. During the

course of cross-examination, nothing was elicited, which is

helpful to the appellant.

19. The learned counsel for the appellant has submitted

that there is no motive for the appellant to kill the victim with

whom he has been living for the last 20 years. Though there

is no marriage between the appellant and the deceased, the

story of the prosecution is that after the death of the

husband of the deceased, the deceased started living with the

appellant along with her children born to her through her

deceased husband. The daughter of the deceased was

examined as PW1 and she has deposed that the deceased

was her mother and appellant is her father. This statement

of PW.1 clearly indicates that deceased and appellant were

living as wife and husband.

20. The statement of the deceased in the form of dying

declaration is crystal clear to the effect that the appellant was

suspecting that she saved some money and has not disclosed

to the appellant and thereby he has killed her. The other

reason given is that the appellant was harassing her everyday

by coming to the house in drunken condition and used to

abuse and beat her and thereby in part of the said

harassment in drunken condition, the appellant has poured

kerosene and set her ablaze. Therefore, the contention of the

learned counsel for the appellant that there is no motive,

cannot be accepted.

21. Even otherwise, once there is strong evidence in the

form of dying declaration, the question of having or not

having motive for commission of offence is not at all

important. Even if the prosecution fails to prove motive, if

there is direct strong evidence that the accused has

committed the offence, then there is no option except find the

accused guilty of the offence alleged.

22. It is also submitted by the learned counsel for the

appellant that there are no direct witnesses and thereby it is

not safe to rely only on the circumstantial evidence and

found the appellant guilty. It is true that there are no

eyewitnesses to the incident. However, there is a strong

evidence produced by the prosecution in the form of dying

declaration, which speaks that the deceased has categorically

stated that the appellant is responsible for her death.

Therefore, the contention of the appellant that since there are

no eyewitnesses, thereby the accused can be found not

guilty, has no basis.

23. On considering the entire material on record, except the

dying declaration under Ex.P13 recorded by PW.9, there is no

other material connecting the appellant to the death of the

deceased. The question therefore arises is whether dying

declaration can be substantive piece of evidence and basing

on the dying declaration alone whether conviction can be

recorded?

24. In Gopal vs. State of Karnataka1, the Hon'ble

Supreme Court has held as under:

"2. The allegation against the appellant-accused is that on 29-12-1998 at about 5 p.m., he poured kerosene on the body of his wife, Mallavva and set her on fire. It has come in the evidence that Mallavva was immediately taken to the hospital by PW 8, Nagavva and PW 15, Sushila and she was treated by PW 5, Dr Noor Ahmed. PW 5 is said to have intimated to the police station on which PW 13, PSI Ravi came there and recorded her dying declaration.

3. In that dying declaration, the deceased has clearly alleged that the accused used to drink liquor and quarrel with her. He also used to assault the deceased in a drunken state. On 29-12-1998, the accused had given Rs.200 to her for purchase of ration. He immediately took back Rs.100 out of Rs.200. She purchased the ration of the remaining

(2011) 14 SCC 396

amount of Rs.100. At about 5 p.m., on the same day, the accused returned to the house and demanded Rs.100 from her. Thereupon, the deceased told the accused that she had already purchased the ration but the accused asked her to return the ration and get him Rs.100 back. On her refusal, the accused became angry and tied her hands and poured kerosene on her body and set her ablaze. On 19-1-1999, Mallavva succumbed to the injuries.

4. We have heard the learned counsel appearing for the parties and gone through the record and judgments of the courts below. We are convinced that the findings of the trial court as well as of the High Court that this dying declaration can be made the sole basis for the conviction of the accused is a correct inference drawn by the courts below.

5. We have ourselves examined the dying declaration. What impresses us is that there is solely no explanation by the accused anywhere as to how the presence of kerosene has been found on the brassiere, saree and petticoat of the unfortunate lady. We have seen the FSL report, Ext. P-25 for that purpose which endorses this fact. It is not the defence of the accused that the death was suicidal or accidental. There is nothing on record even to entertain such doubt. The presence of kerosene residue on the inner and outer garments provides strong corroboration of the version in the dying declaration.

6. It is true that the witnesses, who carried the deceased to the hospital, turned hostile during their examinations but that may not be an escape route for the accused because men may lie but the circumstances do not. The circumstances in this case clinch the proof that it is the accused and the accused alone who has committed this offence.

7. Mr Ram Lal Roy, learned counsel appearing for the accused pointed out that the investigating officer did not make any attempt to get recorded the second dying declaration of the deceased by a Magistrate. It is really true. It would have been better if the investigating officer had made an attempt to get

recorded the second dying declaration of the deceased by a Magistrate. But, in our opinion, the dying declaration recorded by PW 13 and supported by PW 5 Dr Noor Ahmed and the endorsement made by him to the effect that the deceased was in a fit mental condition to depose before the police convinces us that the dying declaration itself was a good dying declaration and could have been acted upon.

8. We find no merit in this appeal. It is, accordingly, dismissed."

The rationale of the above authority is also squarely

applicable to the facts of the case. Hence, basing on the

dying declaration alone, conviction can certainly be recorded.

25. It is also submitted by the learned counsel for the

appellant that there is a possibility of third party committing

the crime. Though the learned counsel for the appellant has

taken this plea, on going through entire cross-examination of

the prosecution witnesses, including the Investigating Officer,

no suggestion has been given by the appellant stating that a

third person is involved in commission of the offence or there

is also no suggestion that the deceased herself committed