Mohd.Ghudu Miya vs The State Of Ap.,
2022 Latest Caselaw 6644 Tel

     HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA
                        AND
        HON'BLE JUSTICE A.SANTHOSH REDDY

              CRIMINAL APPEAL No.847 of 2013

JUDGMENT: (per Dr. Justice Chillakur Sumalatha)


1.    Challenge in this Criminal Appeal is the judgment

that is rendered by the Court of III Additional District and

Sessions Judge, Ranga Reddy District, in S.C.No.289 of

2010, dated 27.9.2013.

2.     Having found the appellant guilty of the offence

punishable     under    Section   302    IPC,     the   trial   Court

convicted and sentenced him to undergo imprisonment for

life and to pay fine of Rs.1,000/-. Assailing the same, the

appellant is before this Court.

3.    Heard the submission of learned counsel for the

appellant and the learned Additional Public Prosecutor who

is representing the respondent-State.

4. Making his submission, learned counsel for the

appellant contended that the death of the wife of the

appellant is not homicidal, but suicidal. Learned counsel

stated that P.Ws.1 and 2 are interested witnesses and there Dr.CSL , J & ASR, J

is no motive on part of the appellant to kill his wife, but the

said fact was totally ignored by the trial Court. Learned

counsel further submitted that the appellant accompanied

his injured wife to hospital, which itself establishes his

conduct. Learned counsel also stated that the trial Court

ought not to have entertained the dying declaration given

by the wife of the appellant as it lacks material particulars

and further, as the genuineness in the contents is highly

doubtful. Learned counsel also stated that when motive is

not established, it would be wholly improper to convict the

appellant. Learned counsel also submitted that though the

appellant examined himself as D.W-1 and also got

examined four other witnesses on his side, their evidence is

totally ignored by the trial Court and thus, the judgment of

the trial Court is unsustainable.

5. Contradicting the submissions thus made by the

learned counsel for the appellant, learned Additional Public

Prosecutor stated that the statement of the victim woman

was recorded and basing on her statement, a case was

registered and subsequently, a requisition was made to the

Magistrate concerned seeking him to record the dying Dr.CSL , J & ASR, J

declaration of the victim woman and accordingly, her dying

declaration was recorded. Learned Additional Public

Prosecutor also stated that the statement of the victim

woman and her dying declaration tally in all material

particulars and what was stated in her statement before

police was also narrated in the dying declaration and in

both those documents, it is clearly narrated that it is the

appellant who poured kerosene on her and lit fire. Learned

Additional Public Prosecutor contended that taking into

consideration all the factual aspects, the trial Court rightly

convicted the appellant and thus, the impugned judgment

is sustainable.

6. In the light of the submissions thus made, the points

that emerges for consideration are:-

1. Whether the prosecution established beyond all reasonable doubt that the appellant committed offence punishable under Section 302 IPC.

2. Whether there exists any infirmity in the judgment of the trial Court either in appreciating the facts of the case or in applying the established principles of law to the said facts, as contended by the appellant, Dr.CSL , J & ASR, J

which in turn requires interference of this Court exercising appellate jurisdiction.

POINT No.1:-

7. The case of the prosecution in nut-shell, as could be

perceived through the contents of the charge sheet, is that

the deceased-Salma (hereinafter referred to as "the

deceased", for brevity) is the wife of the appellant. Their

marriage was performed three years prior to the date of the

incident and during their conjugal life, they were blessed

with one boy. The appellant used to work as painter, but

he got habituated to consuming alcohol. At the time of

their marriage, the parents of the deceased gifted a house

to her. Due to financial problems and to meet his required

expenses, the appellant used to demand the deceased to

bring money from her parents and in that regard, he used

to pick up quarrel with her frequently. On 12.5.2009, at

about 9.30 am, the appellant picked up quarrel with the

deceased and ultimately, he took a kerosene bottle, which

was available in the house, poured the same on the

deceased and set fire. The deceased raised hue and cry and

on that, the appellant poured water to douse the flames. In Dr.CSL , J & ASR, J

the meantime, the neighbours assembled, called

ambulance and shifted the deceased to Gandhi Hospital,

Secunderabad, for treatment and while undergoing

treatment, she succumbed to injuries.

8. To establish its case, the prosecution examined

P.Ws.1 to 12 on its side and also produced Exs.P-1 to P-10

and M.Os.1 to 3. On the other hand, the appellant besides

examining himself as D.W-1 also produced the evidence of

D.Ws.2 to 5.

9. Subjecting the entire evidence which is brought on

record to scrutiny, the learned judge of the trial Court

came to a conclusion that the prosecution emerged

successful in establishing the guilt of the appellant beyond

all reasonable doubt for the offence punishable under

Section 302 IPC. However, the version of the appellant is

that he is not at fault.

10. When the judgment of the trial Court is gone

through, this Court finds that the learned judge of the trial

Court based his conclusion mainly relying upon Ex.P-6-

dying declaration of the deceased that was recorded by

P.W-9.

Dr.CSL , J & ASR, J

11. The evidence of P.W-9 is that while he was working

as XVII Additional Metropolitan Magistrate, Nampally,

Hyderabad, he received a requisition from the Station

House Officer, Kukatpally Police Station, on 12.5.2009 at

about 9.30 pm to record the dying declaration of the

deceased. On that, he immediately proceeded to Gandhi

Hospital, Secunderabad, identified the deceased with the

help of the duty doctor and asked her some preliminary

questions in order to know her state of mind. The duty

doctor certified that the patient is conscious and coherent

for giving statement. After putting preliminary questions,

he started recording her statement. P.W-9 deposed that the

deceased stated that she was married to the appellant

about three years back and they were blessed with a male

child and since the time of their marriage, there were

disputes between them. She also stated that the appellant

was harassing her to bring money and the appellant stated

that unless she brings money, she will not be allowed to

lead marital life and that on 12.5.2009, at about 9.00 am.,

the appellant demanded her to bring money and thereby,

picked up quarrel. She also stated that the appellant Dr.CSL , J & ASR, J

poured kerosene on her and lit fire and while she was

burning, she raised cries and the appellant poured water

on her and ran away and thereafter, he called ambulance

and she was admitted at hospital. P.W-9 also stated that

the deponent stated that her husband requested her not to

disclose that he poured kerosene on her and set fire and

she, when spelt out the said sentence, also spelt out 'Allah'

'Allah' and she further stated that her two eyes were

completely burnt and she is unable to subscribe her

signature and that, she would affix her thumb impression.

P.W-9 further stated that he obtained her left hand thumb

impression and subsequently, she gave further statement

stating that she was three months pregnant and she does

not want her husband and she wants to stay with her son.

She also stated that her husband "masthuga thaguthadu"

and he cannot provide food to her son and she requires her

son. That's all and that while stating so, she also spelt out

'Allah'.

12. Learned counsel for the appellant stating that

neither the evidence of P.W-9 nor Ex.P-6-dying declaration

of the deceased can be relied upon, based his submission Dr.CSL , J & ASR, J

on the decision rendered by Hon'ble Apex Court in the case

between Makhan Singh Vs. State of Haryana1. In the

said decision, discussing with regard to the evidentiary

value to be attached to a dying declaration, their Lordships

at paras 8 and 9 of the judgment held as follows:-

"8. The law with regard to dying declaration has been summarized by this Court in the case of Lakhan Vs. State of Madhya Pradesh {(2010) 8 SCC 514}, wherein the Court considered various oral judgments on the issue and observed thus:

"21. In view of the above, the law on the issue of dying declaration can be summarised to the effect that in case the court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required.

In case there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by

2022 SCC OnLine SC 1019 Dr.CSL , J & ASR, J

the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the court has to scrutinise the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance."

9. It could thus be seen that the Court is required to examine as to whether the dying declaration is true and reliable; as to whether it has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration; as to whether it has been made under any tutoring/duress/prompting. The dying declaration can be the sole basis for recording conviction and if it is found reliable and trustworthy, no corroboration is required. In case there are multiple dying declarations and there are inconsistencies between them, the dying declaration recorded by the higher officer like a Magistrate can be relied upon. However, this is with the condition that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration has not been found to be made voluntarily and is not supported by any other Dr.CSL , J & ASR, J

evidence, the Court is required to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance.

13. P.W-11 stated that on receiving intimation about the

admission of the deceased, he proceeded to Gandhi

Hospital, Secunderabad, and recorded the statement of the

deceased which is Ex.P-7. The contents of Ex.P-7-

statement does not in any way deviate from the contents of

Ex.P-6-dying declaration of the deceased. The statement

given by the deceased i.e., Ex.P-7 is in conformity with

Ex.P-6-dying declaration. Even in the decision that is relied

upon by the learned counsel for the appellant, it is clearly

held that only when there are circumstances to hold that

the dying declaration is not made voluntarily or where

there is suspicion with regard to its truthfulness, then only

the dying declaration can be discarded.

14. However, in the case on hand, the contents in

Ex.P-6-dying declaration and Ex.P-7-statement of the

deceased are consistent and in both of the documents, the

deceased clearly stated that it is the appellant who poured

kerosene on her and set fire. Thus, Ex.P-6-dying Dr.CSL , J & ASR, J

declaration and Ex.P-7-statement of the deceased are

sufficient to hold that the appellant is responsible for the

death of the deceased.

15. Further, there is also other material on record

corroborating the version of the deceased. P.W-1, who is

the uncle of the deceased, and P.W-2, who is the

grandmother of the deceased, also deposed about the

addiction of the appellant to alcohol and the harassment

the deceased met in the hands of the appellant. The

neighbours i.e., P.Ws.3 and 4 also spoke about the

incident, supporting the case of the prosecution.

16. The evidence of P.W-3 is that on the date of the

incident, he heard cries from the house of the appellant

and he came out of his house and found the appellant

running away from his house and he also found the

deceased with burn injuries. He stated that he was

informed by the deceased that the appellant set fire to her.

He also deposed that the appellant was harassing the

deceased to sell away the plot which was in her name and

give the amount to meet his vices.

Dr.CSL , J & ASR, J

17. The evidence of P.W-4 is that after the marriage, the

deceased and the appellant lived happily for one year and

thereafter, the appellant started harassing the deceased

being habituated to alcohol and they chastised the

appellant. She stated that when the appellant abused them

in filthy language, they lodged a complaint with Kukatpally

Police Station. She further deposed that about three years

back, she heard galata at the house of the appellant,

rushed there and found the deceased with burn injuries

and on enquiry, the deceased informed her that the

appellant poured kerosene on her and set fire and fled

away from the house. P.W-4 also stated that the appellant

was beating the deceased to sell the plot and to give the

amount to him.

18. Though P.Ws.1 to 4 were cross-examined, nothing

could be elicited through them to discredit their testimony.

19. Though the appellant as D.W-1 stated that while he

left the house, he heard cries from his house and ran back

to his house and poured water on his wife and stopped

flames, the said version cannot be believed upon in the

light of the evidence of P.Ws.1 to 4 and also Ex.P-6-dying Dr.CSL , J & ASR, J

declaration that is given by the deceased. There is no

reason for P.Ws.3 and 4, who are the neighbours of the

appellant, to give a false statement. Likewise, D.Ws.2 to 5

are not the ocular witnesses to the incident. Even their

evidence goes to show that there were disputes between the

deceased and the appellant. The deceased in her dying

declaration-Ex.P-6 clearly stated that it is the appellant

who poured kerosene on her and set fire and also, that the

appellant asked her not to inform the same to anyone.

20. Having regard to the afore-mentioned factors, this

Court is not inclined to take into consideration the

submission of the learned counsel for the appellant that

when there are multiple dying declarations, they cannot be

relied upon. In this regard, learned counsel for the

appellant relied upon the decision of a Division Bench of

this Court in the case between Origala Adam Vs. State of

A.P.2

21. In the same manner, though the learned counsel for

the appellant relied upon the decision of the Hon'ble Apex

2011(1) ALT (Crl.) 298(D.B.) Dr.CSL , J & ASR, J

Court in the case between State of Rajasthan Vs. Yusuf3,

the said decision cannot be applied to the present case to

set aside the impugned judgment of the trial Court as there

is no attempt in this case on part of any of the prosecuting

witnesses or the deceased to falsely implicate the appellant.

22. Law is more than well settled that where the

declaration of the deponent is true and voluntary,

conviction can be based upon such declaration without any

further corroboration. It is only when the dying declaration

is suspicious, the Court should see for corroborative

evidence. Also, when the dying declaration suffers from any

infirmity, it cannot form basis for conviction. Merely

because there are minor discrepancies in the evidence of

the witnesses or that the dying declaration does not

contain minute details, neither the evidence of the

prosecution witnesses nor the dying declaration of the

deceased can be rejected.

23. In the case on hand, the duty doctor affirmed that the

deponent was conscious and was in a fit state of mind to

give statement. By putting preliminary questions, the

(2009) 12 SCC 139 Dr.CSL , J & ASR, J

judicial officer, who recorded the dying declaration of the

deceased, was also satisfied that she can make a

statement. With that satisfaction, he proceeded to record

the statement of the deceased and accordingly, recorded

the same. Therefore, the said statement cannot be

discarded.

24. The evidence thus brought on record is, therefore,

sufficient to record the conviction of the appellant. The

prosecuting agency has established beyond all reasonable

doubt that it is the appellant who caused the death of the

deceased. Therefore, the point is accordingly answered.

POINT No.2:-

25. When the judgment of the trial Court is gone through,

this Court finds that the learned judge of the trial Court

has discussed at length each and every aspect of the case

and gave cogent findings as to why he is satisfied with the

evidence that is produced by the prosecution. The learned

judge of the trial Court also discussed about the value to

be attached to the dying declaration of the deceased and all

the relevant factors and finally, came to a conclusion that

the appellant is liable to be convicted for the offence Dr.CSL , J & ASR, J

punishable under Section 302 IPC. None of the grounds

urged nor the points raised during the course of arguments

are therefore, applicable to set aside the well-reasoned

judgment of the trial Court. Thus, this Court ultimately

holds that the judgment of the trial Court prevails.

26. Resultantly, this Criminal Appeal is dismissed. The

judgment that is rendered by the Court of III Additional

District and Sessions Judge, Ranga Reddy District, in

S.C.No.289 of 2010, dated 27.9.2013, is therefore,

confirmed.

27. Pending Miscellaneous Petitions, if any, shall stand

closed.

_______________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA

_________________________

A.SANTHOSH REDDY, J 09.12.2022 dr