Telangana High Court
The State Of A.P., Rep. By The P.P., vs Bhupelli , Kothapalli Kumar on 13 December, 2023
Author: P.Sree Sudha
Bench: K.Lakshman, P.Sree Sudha
THE HONOURABLE SRI JUSTICE K.LAKSHMAN
AND
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CRIMINAL APPEAL No.126 of 2014
JUDGMENT:
(per Hon'ble Smt. Justice P.Sree Sudha)
This Criminal Appeal is filed against the Judgment dated
07.07.2011, in S.C.No.428 of 2010 passed by the learned
IV - Additional Sessions Judge (FTC), Karimnagar.
2. The case of the prosecution is that the father of the
deceased Lavanya, gave complaint on 03.11.2008, at about
9:00 AM stating that he performed the marriage of her daughter
with A.1 on 03.03.1999. At the time of marriage, he gave
Rs.1,90,000/- cash, 6 tulas of gold and other articles as dowry
to accused in the presence of elders. Subsequently, they were
blessed with two children by name Ajay Kumar aged 8 years
and Sahithya aged about 5 years. After the birth of the
daughter, A.1 and his parents started harassing his daughter
physically and mentally demanding additional dowry, as such
he gave another 3 tulas of gold and later A.1 sold out his auto
and spent all the money for drinking and harassing his
daughter daily. Recently, he retired from service. On
15.10.2005, A.1 and his parents harassed his daughter
demanding to bring three more lakhs, as such his two sons
along with their friends went to the house of his daughter and
promised that they will deposit some amount in the names of
two children, but on 29.10.2008 in-laws of his daughter
demanded amount and at their instance, A.1 poured kerosene
on his daughter and set her to fire and it was informed that
neighbors shifted her in 108 ambulance to Surya Hospital,
Godavarikhani. When they went to hospital, her condition was
critical, as such she was shifted to Yashoda Hospital and
Kamineni Hospitals, but as they refused to admit her, she was
admitted in Gandhi Hospital, Secunderabad. On 02.11.2008, at
about 11.00 AM, she succumbed to injuries while undergoing
treatment. Therefore, he requested to take action against A.1
and his parents, as they are the cause of death of his daughter.
Later, alteration memo was filed and section of law was altered
from 498-A and 307 of IPC to section 498-A and 302 of IPC.
3. To prove the guilt of the accused, prosecution examined
P.Ws.1 to 16 and marked Exs.P1 to P12 and also marked
M.Os.1 and 2. The trial Court after considering the oral and
documentary evidence, found A.1 to A.3 not guilty for the
offences under Sections 498-A, 302 of IPC and Sections 3 and 4
of Dowry Prohibition Act and are acquitted under Section 235(1)
of Cr.P.C for the said offences. Aggrieved by the said judgment,
State preferred the present appeal. At the time of admission,
A.2 and A.3 were acquitted, as such this appeal is only against
A.1.
4. The learned Counsel for the accused mainly contended
that Ex.P10 statement of the deceased recorded by P.W.15-
Investigation Officer, Ex.P12-Dying Declaration of the deceased
recorded by P.W.16-Magistrate and P.Ws.1 to 5 clearly
supported the case of the prosecution and proved the guilt of
the accused beyond reasonable doubt, but the trial Court failed
to consider the same and acquitted the accused. Therefore,
requested the Court to set aside the Judgment passed by the
trial Court.
5. Heard arguments of both the Counsel and perused the
entire evidence on record.
6. Prosecution examined 16 witnesses, out of which P.Ws.1
to 5 are near relatives of the deceased. P.W.1 is the father,
P.Ws.2, 4 and 5 are brothers, P.W.3 is the mother of the
deceased. All of them stated regarding the payment of dowry at
the time of marriage and also regarding the demand of
Rs.3,00,000/- after the retirement of P.W.1. They further stated
that they took the deceased to Kamineni hospital and then to
Sarojini Devi Hospital, but they refused to admit her, as such
they shifted her to Gandhi Hospital and she died after four
days. A.2 was an employee in Singareni collieries. They have
not enquired about the antecedents of the accused. At the time
of marriage, A.2 transferred to Bhupalpally, as such A.2 and A.3
were also residing at Bhupalpally in a rented house. A.2 retired
5 months prior to the death of the deceased. A.2 deposited some
amount in fixed deposit in the name of the children of the
deceased. They also stated that the children of the deceased
and daughter of sister of A.1 were also present in the house at
the time of incident. They came to know about the incident
through neighbors. They further stated that after the death of
the deceased, her children were residing with A.2 and A.3 from
the past one year. They handed over the children to A.2 and
A.3 on their request and also agreed to give land and fixed
deposits in the name of children and they took all the gold and
silver articles from the house of A.1 after giving receipt. A.2 and
A.3 gave Rs.50,000/- to take children, even though P.W.1 had
spent Rs.2,00,000/- at Gandhi Hospital. It was suggested to
them that they tutored her daughter for giving statements at
Godavarikahani, Gandi Hospital and before the Magistrate, but
they denied it, but they were with her when she was shifted
from Godavarikhani to Kamineni hospital and from there to
Gandhi Hospital and till her death. They stated that they did
not know whether there was dispute between A.1 and deceased
for purchasing an Auto by encashing fixed deposit, which was
in the name of their children.
7. P.W.6 is the Doctor. He stated that on the requisition of
the Circle Inspector of Police, the learned Magistrate came, but
the deceased was unable to speak, as such her statement was
not recorded. Then he advised the parents of the deceased to
take her to Hyderabad. In his cross-examination, he stated that
it took 1½ to 2 hours for treatment and the C.I and learned
Magistrate came 1 hour thereafter. P.W.7 is the Plastic
Surgeon. He stated that he brought the case sheet. The
admission slip shows that patient alleged to have burnt herself
with kerosene at her residence on 29.10.2008 at about 9.00 PM
near Karimnagar. He mentioned history in the case sheet. The
Duty Doctor mentioned that patient alleged to have committed
suicide by setting herself on fire with kerosene, but the said
case sheet and admission slip were not marked for the reasons
best known to the prosecution. P.W.8 is the photographer,
P.Ws.9 and 10 are friends of P.W.1 and they were present at the
time of mediations. They also stated regarding the payment of
Rs.1,90,000/- in cash and 6 tulas of gold as dowry to the
accused at the time of marriage and further they stated that
they conducted Panchayat and advised that after retirement of
P.W.1, amount will be arranged and fixed deposit will be done in
the name of two children. They also stated that P.W.1 informed
about the harassment of A.1 to A.3 against his daughter. They
admitted that they have not stated regarding the depositing of
amount in the name of children in their statement under
Section 161 of Cr.P.C. P.W.11 is the Panch witness for the
inquest panchanama marked under Ex.P3. P.W.12 is the Panch
witness for scene of offence panchanama and M.O's 1 and 2
were seized in his presence. P.W.13 is the Assistant Professor,
Department of forensic medicine in Gandhi Medical College,
Hyderabad. He conducted autopsy over the dead body of the
deceased and found the cause of death as burns of 90% and
issued post mortem examination report with his signature. He
stated that deceased died due to septic shock due to infected
burns. He further stated that there is possibility of
strangulation in burns case, but as there are 3rd degree burns,
he could not identify the strangulation marks, as whole soft
tissues were damaged. If it is a case of 1st degree burns, he can
identify the ligature marks.
8. P.W.14 is the Sub Inspector of Police, who received the
complaint and registered a case in Cr.No.132 of 2008 under
Section 498-A and 307 of IPC and issued Ex.7-F.I.R. He
admitted that Magistrate received F.I.R on 31.10.2008, at about
10:30 AM. He specified the distance between P.S to quarters of
Magistrate as 10 to 11 Kms. He also stated that C.I received C.D
file at 12:30 mid night and sent it to the Magistrate. P.W.15 is
the Investigation Officer, who recorded the statement of the
deceased and obtained her thumb impression. He had also
recorded the statement of P.W.6 and filed requisition before
M.R.O to record her statement. P.W.14 registered the F.I.R and
had sent the C.D file to him. Ex.P8 is the alteration memo for
altering section of law from Section 498-A and 307 IPC to 498-A
and 302 IPC. He arrested A.1 on 06.11.2008, at about 6:00 PM
and arrested A.2 and A.3 on 21.12.2009, and sent them to
Court for judicial custody. In his Cross-examination, he
admitted that he has seen the case sheet and admission slip of
the deceased at Gandhi Hospital, but he has not verified the
record. He also stated that P.W.7 admitted the patient and he
had not collected the records either from Surya Hospital or
Gandhi Hospital. Neighbours admitted the deceased at Surya
Hospital in 108 ambulance, but he has not examined the
neighbours or staff of 108. He further admitted that witnesses
examined by him have not stated the names of elders, who
participated in the marriage alliance and also subsequent
Panchayats. He stated that he did not know where A.2 was
working and when he was retired and after retirement where he
was residing and he had also not examined regarding the
retirement of P.W.1. It was suggested to him that deceased
deposed that she poured kerosene on herself, as such they have
not produced case sheets of Surya Hospital and Gandhi
Hospital, but he denied it.
9. P.W.16 is the Magistrate who recorded the Dying
Declaration. He stated that immediately after receiving
requisition from the police, he visited the hospital and duty
doctor identified the victim as, she was in fit state of mind to
give her statement. To ascertain her state of mind, he posed
preliminary questions to her and then obtained the
endorsement of the duty doctor and later recorded the Dying
Declaration. He also stated that as her fingers of both hands
were found burnt, they have taken her left big toe impression on
the statement. Ex.P11 is the requisition given by S.I of Police,
Chilakalaguda and Ex.P12 is the Dying Declaration recorded by
him. In his Cross-examination, he stated that no one was
present near the patient except the duty doctor and nursing
attender during his visit. The trial Court cited several
Judgments and stated that as per the evidence, deceased
poured kerosence on herself and set her to fire and on relying
upon the evidence of P.W.7, acquitted all the accused.
10. Now, it is for this Court to see whether the Dying
Declaration given by the deceased Lavanya is to be relied upon
for giving conviction or not.
11. On 29.10.2008, statement of the deceased was recorded
under Ex.P10 by C.I of Godavarikhani - II Town and it was
endorsed by the Doctor that deceased was coherent and her
statement was recorded in his presence. In the statement, she
clearly stated that her marriage was performed about 9 years
back with Kumar/A.1 and they were having two children
namely Ajay Kumar, aged 8 years and Sahitya, aged about 6
years. Her husband was working as Auto driver. He sold his
Auto one month back and addicted to drinking. On the date of
incident, A.1 intended to take bank loan and picked up quarrel
with her and poured Kerosene on her and set her on fire. The
incident was occurred on 29.10.2008, at about 9:00 PM and her
statement was recorded on the same day and her thumb
impression was taken on the statement. Basing on the said
statement, case was registered in Cr.No.132 of 2008, under
Section 498-A and 307 of IPC and F.I.R was sent to all the
concerned. This earlier statement was given by the deceased
Lavanya immediately after the occurance. In fact, she was
shifted to the hospital in 108 by neighbours. P.W.6 stated that
on the requisition of C.I, learned Magistrate came to record the
statement of the deceased, by that time she was unable to
speak, as such her statement was not recorded and she was
referred to the Hospital at Hyderabad. Ex.P11 is the requisition
given by the Sub Inspector of Police to the Judicial Magistrate to
record Dying Declaration of the deceased Lavanya, in which it
was stated that she alleged to have self-inflicted burn injuries at
her residence on 29.10.2008, at about 9:00 PM and received
100% burns. P.W.7 is doing Post Graduation in Plastic Surgery
in G.M.C. He stated that on 02.11.2008, deceased lavanya had
her last breath on account of burn injuries and he informed the
same to R.M.O and police recorded his statement, but in the
Cross-examination, he stated that he brought the case sheet
and admission slip, which shows that she alleged to have burnt
herself with Kerosene at her residence on 29.10.2008 at about
9:00 PM. The duty Doctor also mentioned that patient
committed suicide by setting herself to fire, but the said case
sheet and admissions slip were not marked by the prosecution.
It is one of the crucial piece of evidence, though he brought the
case sheet and admission slip, why it was not marked was not
explained by the prosecution, but it seems that basing on the
said case sheet, requisition was sent to the Magistrate under
Ex.P11, in which it was stated that it is a case of self-inflicted
burn injuries.
12. However, after receiving requisition, Magistrate came and
recorded the Dying Declaration under Ex.P12. He posed
preliminary questions to the deceased Lavanya to ascertain her
state of mind and Doctor made an endorsement that patient is
conscious, coherent and in full senses to give statement. He had
also disclosed his identity and the purpose of his visit and
asked her to narrate the incident, then she stated that her
marriage was performed about 9 years back and they are having
two children. She along with her husband was residing at 8th
incline colony, Godavarikhani. Her husband was running an
Auto, but he sold away his Auto about 3 or 4 months back, from
then onwards he was not doing any work. Whenever she
questioned him, he used to beat her and she informed the same
to her brothers i.e., Srinu, raju and mahinder, as such he
developed grudge against her and stopped talking with her. She
further stated that her in-laws deposited Rs.1,50,000/- in the
name of her two children and her husband insisted her to
cancel the fixed deposit for purchasing the Auto, when she
refused for the same, he picked up quarrel on the previous night
at about 10:00 PM and he asked her to die in a fit of anger, as
such she intended to die and poured some Kerosene on her and
her husband also poured some more Kerosene, after that he lit
a paper on gas stove and set her to fire. At that time, the sister's
daughter of A.1, by name Sony was also present in the house.
She restrained her husband, but he did not heed to her words
and asked the deceased to die and set her to fire, but when she
was in flames, he poured water. When she raised cries,
neighbours came and taken her to hospital and also stated that
her husband was responsible for the cause of her death.
13. The learned Counsel for the accused argued that P.Ws.1
to 5 tutored her and it is the tutored version. She gave her
Dying Declaration later against the accused at the instance of
her parents and brothers.
14. Now, it is for this Court to see the genuinity of the Dying
Declaration given before the Magistrate.
15. No doubt, the learned Magistrate recorded the statement
of the deceased Lavanya by following the rule prescribed under
Criminal Rules of Practice. She gave Dying Declaration in detail
by mentioning several facts. Though she stated that initially she
poured some Kerosene on her, she clearly stated that her
husband poured some more Kerosene on her. He lit the gas
stove and lit one paper and set her on fire, though his sister's
daughter restraining him from doing so, but when she was in
flames, he poured some water, but he had not taken her to
hospital, only on hearing her cries, neighbours taken her to
hospital and informed to her parents. When they reached
hospital, by that time she was brought to hospital in
ambulance. Initially, when she was shifted to the hospital, she
stated to the C.I of Police that her husband set her to ablaze
and she reiterated the same before the Magistrate in detail and
clearly stated that her husband is the reason for her death.
Though, it was argued by the learned Counsel for the accused
that it is a case of self-inflicted injuries and she stated so at the
instance of her parents and brothers, as per the evidence of
P.W.7, the case sheet along with admission slip, in which it was
mentioned that it was a self-inflicted injury were not marked
before the Court. He only stated that deceased had her last
breath on 02.11.2008, and informed the same to R.M.O. There
is no evidence to show that she inflicted injuries on herself. The
only evidence is the case sheet and admission slip, but they
were not marked by the prosecution and even accused did not
called for the said record. Even though they were brought to the
Court, the learned Counsel for the accused, did not insist them
to mark the said documents.
16. In many cases, the Court has laying down such principles
emphasized the necessity of interference with an order of
acquittal being based only on "compelling and substantial
reasons" and has expressed the view that unless such reasons
are present an Appeal Court should not interfere with an order
of acquittal. Vide Suraj Pal Singh Vs. The State, Ajmer Singh
Vs. State of Punjab and in Puran Vs. State of Punjab, the
use of words "compelling reasons" embarrassed some of the
High Courts in exercising their jurisdiction in appeals against
acquittals and difficulties occasionally arose as to what this
Court had meant by words "compelling reasons". In later years
the Court has often avoided emphasis on "compelling reasons"
but nonetheless adhered to the view expressed earlier that
before interfering in appeal with an order of acquittal a Court
must examine not only questions of law and fact in all their
aspects, but must also closely and carefully examine the
reasons which impelled the lower courts to acquit the accused
and should interfere only if satisfied after such examination that
the conclusion reached by the lower court that the guilt of the
person has not been proved is unreasonable. Vide Chinta Vs.
The state of Madhya Pradesh, Ashrafkha Haibaktha
Pathan Vs. The state of Bombay, it is clear that in
emphasizing in many cases the necessity of "compelling
reasons" to justify an interference with an order of acquittal the
Court did not in any way try to curtail the power bestowed on
appellate Courts under Section 423 of the Code of Criminal
Procedure when hearing appeals against acquittal, but
conscious of the intense dislike in our jurisprudence of the
conviction of innocent persons and of the facts that in many
systems of jurisprudence the law does not provide at all for any
appeal against an order of acquittal the Court was anxious to
impress all the appellate Courts the importance of bestowing
special care in the shifting of evidence in appeal against
acquittals. As has already been pointed out less emphasis is
being given in the more recent pronouncements of this Court on
"compelling reasons". But, on close analysis, it is clear that the
principles laid down by the Court in this matter have remained
the same. What may be called the golden thread running
through all these decisions is the rule that in deciding appeals,
against acquittal the Court of appeal must examine the evidence
with particular care, must examine also the reasons on which
the order of acquittal was based and should interfere with the
order only when satisfied that the view taken by the acquitting
Judge is clearly unreasonable. Once the appellate Court comes
to the conclusion that the view taken by the lower court is
clearly an unreasonable one, that itself is a "compelling reason"
for interference. For, it is a Court's duty to convict a guilty
person when the guilt is established beyond reasonable doubt,
no less than it is its duty to acquit the accused when such guilt
is not so established.
17. There are two Dying Declarations before the Court, one
was recorded by the C.I of Police immediately after the incident
and another was recorded by the learned Magistrate on
30.10.2008. The learned Magistrate clearly stated that at the
time of recording the statement, except the duty doctor and the
nurse, no other person was present. Merely because P.Ws.1 to 5
were present with the victim, it cannot be said that it is a
tutored version. Perusal of the Dying Declaration shows that it
is not a tutored version and there is no reason for her to
implicate her husband falsely without any reason. She clearly
stated regarding the dispute between her husband and herself
and she informed the same to her brothers and she also stated
that her in-laws deposited Rs.1,50,000/- in the name of her
children one week prior to the date of incident, but A.2 retired 5
months prior to the incident. The eye-witness to the occurrence
i.e., sister's daughter Sony was not examined. The manner in
which he set her ablaze was not spontaneous or in sudden
provocation. When she poured some Kerosene, he also poured
some more Kerosene, lit the gas stove and by lighting paper, he
set her ablaze. In the meanwhile, his sister's daughter
restrained him not to do so. Even then, he asked her to die and
set her to fire, later he poured some water and deserted her to
her fate and left the place without taking her to hospital. The
subsequent conduct of the accused also shows that there is no
repentantance in A.1 for setting her ablaze. She clearly stated in
both the Dying Declarations that her husband is the cause of
her death. The demand of dowry was spoken by P.Ws.1 to 5 and
also by P.Ws.9 & 10. The deceased Lavanya stated that her
husband sold away his Auto about 3 or 4 months prior to the
incident, he was not doing any work and addicted to drinking.
This Court is conscious of the fact that appellate Court should
be slow in reversing the Judgment of the acquittal in view of the
citations of the Hon'ble Apex Court. In this case, there are two
Dying Declarations. In both the Dying Declarations, deceased
made allegation against her husband and both the Dying
Declarations are consistent regarding that aspect, but the trial
Court erroneously even without any record or basis arrived to
the conclusion that she inflicted injuries on her own which is
patently erroneous. Therefore, this Court finds that the
Judgment passed by the trial Court is not on proper
appreciation of facts and is liable to be set aside.
18. In the result, the Criminal Appeal is partly allowed and
the Judgment of the trial Court dated 07.07.2011 in S.C.No.428
of 2010 acquitting the 1st respondent/A1 for the offence
punishable under Section 302 of IPC is set aside. A.1 is found
guilty for the offence punishable under Section 302 of IPC and
is accordingly convicted and sentenced to undergo life
imprisonment and to pay a fine of Rs.5,000/-, in default to
suffer S.I for six months. However, the finding of acquittal
recorded by the trial Court against A.1 for the offences
punishable under Section 498-A of IPC and 3 & 4 of D.P.Act is
confirmed. M.Os.1 and 2 shall be destroyed after expiry of
appeal time. A.1 is directed to surrender before the trial Court
to serve the sentence of imprisonment imposed by this Court.
Pending miscellaneous petitions, if any, shall stand
closed.
________________________
JUSTICE K.LAKSHMAN
_________________________
JUSTICE P.SREE SUDHA
DATE: 13.12.2023
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