Telangana High Court
The State Of Andhra Pradesh, vs Gundekari Yadagiri, on 16 February, 2024
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.1087 of 2014
JUDGMENT:
(per Hon'ble Smt. Justice P.Sree Sudha)
This Criminal Appeal is filed against the Judgment dated
20.05.2011, in S.C.No.56 of 2010 passed by the learned
IV - Additional Sessions Judge (FTC), Warangal.
2. The case of the prosecution is that on 13.08.2009, the
father of the deceased gave complaint stating that he performed
the marriage of his elder daughter Gundekari Rajitha, aged
about 28 years as on the date of incident with one Gundekari
Yadagiri/accused about 12 years back and they blessed with
one son and daughter. His son-in-law was doing Cooli work.
About 2 years back, his son-in-law used to pick up quarrel with
his daughter and beat her without any valid reason, as such
mediation was conducted and elders also advised him not to
repeat the same and later about 5 or 6 months back, he kept
his daughter and son-in-law in a rented house, even then there
is no change in the attitude of the accused. On 13.08.2009, at
about 6:30 AM, his grandson namely Raju, aged about 12 years
came on to the road and stated that his father poured Kerosene
on his mother and set her ablaze. Immediately, he along with
some others went there and found his daughter with burn
injuries and immediately shifted her to MGM hospital in 108
ambulance. His Son-in-law with an intention to kill his
daughter, poured Kerosene and set her to fire. Therefore,
requested the Police authorities to initiate action against him. It
was received on 13.08.2009 at about 9:00 AM and registered a
case in Cr.No.147/2009 under Section 307 of IPC and later
when she succumbed to injuries, the Section of law was altered
to 302 of IPC. Dying Declaration was recorded by the Magistrate
on 13.08.2009, from 9:55 AM to 10:10 AM.
3. To prove the guilt of the accused, prosecution examined
P.Ws.1 to 19 and marked Exs.P1 to P10 and also marked
Ex.D1, Exs.C1 to C7 and M.Os.1 to 3. The trial Court after
considering the oral and documentary evidence, acquitted the
accused under Section 235(1) of Cr.P.C under Section 302 of
IPC. Aggrieved by the said judgment, State preferred the present
appeal.
4. The learned Public Prosecutor contended that in spite of
the Dying Declaration deposed by the deceased in clear terms
against the accused, the trial Court erred in appreciating the
evidence properly and acquitted him. He also contended that
the evidence of P.Ws.3, 9 and 13 proves the case of prosecution,
but the trial Court disbelieved their version and the Dying
Declaration recorded by P.W.13 was also not considered.
Therefore, requested the Court to set aside the Judgment of the
trial Court.
5. Complainant is the father of the deceased. In his
evidence, he reiterated the contents of Ex.P1-complaint and
stated that accused was harassing his daughter and also
suspecting her character, as such the matter was placed before
the elders i.e., More Prabhakar and Atika Meeranna. On their
advise, they were kept in a separate residence, even then there
is no change in his attitude. In his Cross-examination he stated
that he can affix his signature, but he could not write. Ex.P1
was scribed by someone else and he could not say the name of
the scribe. It was suggested to him that he has not stated before
the police that he extinguished the fire on his daughter, but he
denied it. It was further suggested to him that he did not state
before police that he raised the dispute about harassment made
by the accused, but he denied it. He further stated that initially
he along with his wife, accused and his wife and their children
lived jointly in his house till accused shifted his residence to a
rented house. When accused stayed in his house, he treated his
wife properly. He also stated that children of the accused were
residing with him. It was suggested that when accused did not
accept their proposal to keep his son with them, he falsely
implicated him, but he denied it. He did not know whether
accused had given any complaint against him on13.08.2009 or
not.
6. P.W.2 is the mother of the deceased. She also stated
regarding the attitude of the accused towards his daughter and
his conduct before elders. She further stated that accused
poured kerosene on his daughter and set her ablaze. By the
time they reached the house of accused, they found the
deceased Rajitha burnt with flames and lying on the ground. On
enquiry, they came to know that accused poured kerosene and
set fire to her. She also stated that her daughter was not in a
position to speak. Her husband was present by the side of her
daughter when the learned Magistrate recorded her statement.
Police personal were also present along with the Magistrate.
7. P.W.3 is the son of the deceased studying 8th class and he
is having one younger sister aged about 6 or 7 years. The
learned Judge, after posing preliminary questions to him,
recorded his statement, in which he stated that accused is his
father and deceased is his mother. He also stated that his father
poured kerosene on his mother and set fire to her. Immediately,
he rushed outside and informed the same to one Latike
Mahender, Latike Rajeshwar Rao, Latike Veeranna, Latike
Nagesh and Gurjala Srinivas. They came to the house of
deceased, extinguished fire and shifted her to hospital. It was
suggested to him that he was studying at Atmakur and he was
not present in the house at the time of incident, but he denied
it. P.W.4 is one of the elder, who conducted Panchayat. He
stated that in the Panchayat held before him, they advised the
accused to reside separately along with his wife. He stated that
Mahender reached first to the house of accused and tried to
extinguish fire. In the meanwhile, they also went there.
8. P.W.5 is More Prabhakar. He stated that prior to the
incident, deceased informed them that accused is suspecting
her character and accused stated that he wants to reside
separately. Accordingly, they advised them to live separately. He
also stated that when they were informed about setting fire to
the deceased, they rushed to the house of accused and found
her with burn injuries. More Rajeshwar Rao and Asike
Rajeshwar Rao, extinguished the fire. P.W.6 is More Rajeshwar
Rao. He clearly admitted that he rushed to the house of accused
and later deceased was shifted to the hospital and she died after
3 days of incident. P.W.7 is the Photographer, who took
photographs under Ex.P2. P.W.8 is another photographer, who
took the photographs of the deceased in the mortuary of MGM
Hospital, Warangal and the same were marked under Ex.P3.
P.W.9 is Asike Mahender. He stated that his house is situated at
back side of the house of accused, as such he can see whatever
things happens in the backyard of the house of the accused. He
also stated that accused was suspecting the character of his
wife, as such they advised him to change his attitude. He stated
that accused poured kerosene on his wife and set her ablaze. He
also stated that he noticed while accused setting fire to his wife
with a firewood stick, which was removed from the oven (Kattela
Poyyi). Immediately, he rushed towards her and covered her
with bed sheet and extinguished fire on her, but in the
Cross-examination, he stated that he has not stated regarding
extinguishing of fire with the bed sheet to the police.
9. P.W.10 did not support the version of prosecution. He
simply stated that he underwent heart operation and he did not
know the details of the death of the deceased. He is the owner of
the house, in which deceased and accused were residing. They
lived in his house as tenants for a period of six or seven months.
In the Cross-examination, he stated that Police examined him in
his house at Tirumalagiri, after the death of Rajitha. He came to
know about the Panchayats that took place between accused
and his wife through elders. P.W.11 is the Panch witness for
scene of offence panchanama. P.W.12 is the Panch witness for
inquest panchanama. He stated that he did not know how the
deceased sustained burn injuries. P.W.13 is the Magistrate, who
recorded the statement of the deceased. She stated that duty
doctor certified that patient is conscious, coherent and in a fit
state of mind to give statement and she also put some
preliminary questions to ascertain whether she was in a fit state
of mind to give statement. As both the hands of the deceased
were burnt, she took the impression of Right Leg Toe of the
deceased in her statement. P.W.14 is the Doctor, who conducted
autopsy over the dead body of the deceased. He issued Post
Mortem Examination report under Ex.P8 and opined that cause
of death is due to burns. P.W.15 is another Panch witness for
scene of offence panchanama and M.Os.1 to 3 were seized in his
presence. P.W.16 is the A.S.I of Police, who received Ex.P1-
complaint and registered a case in Cr.No.147 of 2009, under
Section 307 of IPC and issued FIR under Ex.P9. He recorded the
statement of the accused in MGM hospital and registered a case
in Cr.No.148 of 2009 under Section 324 R/w.34 of IPC for the
injuries sustained by accused and handed over the investigation
to S.I of Police for further investigation.
10. P.W.17 is the S.I of Police, who recorded the statements of
P.Ws.2, 3, 4, 5 and 6. It was suggested to him that they
suppressed the complaint of the accused given by him earlier to
the complaint of P.W.1, but he denied it. P.W.18 is the Inspector
of Police, who conducted further investigation and filed charge
sheet and contradictions in the evidence of P.W.9 were elicited
from him. P.W.19 is the Inspector of Police, who collected FSL
report under Ex.P10 and filed charge sheet. The trial Court after
considering the oral and documentary evidence, held that Ex.P7
is in the printed proforma and the duty doctor who signed on it
was not sighted as eye witness. The endorsement of the doctor
that she was in conscious and coherent is also in printed form.
P.W.2 stated that deceased was not in a position to speak, as
she sustained 92% burn injuries, but in Ex.P7, it was
mentioned that declarant was in a fit state of mind to give
statement, and thus trial Court disbelieved the Dying
Declaration and considering the contradictions in the evidence
of eye witnesses and also the complaint given by the accused,
found accused not guilty for the offence under Section 302 of
IPC.
11. Now it is for this Court to see whether the Judgment of
the trial Court is on proper appreciation of facts or not.
12. 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.
13. The case of the prosecution is that accused poured
kerosene on his wife and set her ablaze and their son aged
about 12 years informed the same to P.W.1 and other persons
who are on the road, immediately after the incident. Many of
them rushed to the spot and shifted her to hospital. The
deceased gave Dying Declaration and died after 3 days. The
Hon'ble Apex Court in the case of Surinder Kumar Vs. State
of Haryana, 1 has laid down several principles governing Dying
Declaration, which reads as follows:
(2011) 10 SCC 173
(i) There is neither rule of law nor of prudence
that dying declaration cannot be acted upon without
corroboration.
(ii) If the Court is satisfied that the dying
declaration is true and voluntary it can base
conviction on it, without corroboration.
(iii) The Court has to scrutinize the dying
declaration carefully and must ensure that the
declaration is not the result of tutoring, prompting or
imagination. The deceased had an opportunity to
observe and identify the assailants and was in a fit
state to make the declaration.
(iv) Where dying declaration is suspicious, it
should not be acted upon without corroborative
evidence.
(v) Where the deceased was unconscious and
could never make any dying declaration the evidence
with regard to it is to be rejected.
(vi) A dying declaration which suffers from
infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does
not contain the details as to the occurrence, it is not to
be rejected.
(viii) Equally, merely because it is a brief
statement, it is not to be discarded. On the contrary,
the shortness of the statement itself guarantees truth.
(ix) Normally the court in order to satisfy
whether the deceased was in a fit mental condition to
make the dying declaration look up to the medical
opinion. But where the eyewitness has said that the
deceased was in a fit and conscious state to make the
dying declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from
the version as given in the dying declaration, the said
declaration cannot be acted upon.
(xi) Where there are more than one statement in
the nature of dying declaration, one first in point of
time must be preferred. Of course, if the plurality of
dying declaration could be held to be trustworthy and
reliable, it has to be accepted.
14. No doubt, in the Dying Declaration she clearly stated that
her husband was suspecting her fidelity. On the date of
incident, in the morning at about 6:00 AM, he poured kerosene
and set her to fire and neighbors extinguished the fire and
shifted her to hospital. She is having one daughter and son.
She clearly stated that her husband is the reason for her death,
but the learned Counsel for the accused mainly contended that
the endorsement regarding conscious and coherent was not
made by the doctor in his own handwriting, but it was in
printed proforma prior to the recording of the Dying Declaration.
After recording the Dying Declaration, though it was specifically
stated that the Magistrate, Doctor, Nurse and attender were
only present at the time of recording the Dying Declaration,
P.W.2 in her evidence stated that her husband and police
personal were also present while recording the statement. No
doubt, conviction can be given basing on the Dying Declaration
given by the deceased in view of sanctity attached to the last
words of the deceased, but while recording the statement it is
for the Magistrate to take all precautions. Admittedly, she
sustained 92% burn injuries and it should be ascertained
whether she was conscious, coherent and in a fit state of mind
to give statement or not. It is for the doctor to make an
endorsement before recording the statement and after recording
the statement with his own handwriting. Though the doctor
signed in the said statement before and after recording the
statement, the said words were already in the printed proforma,
as such prosecution failed to prove whether the patient was
conscious and coherent while recording the Dying Declaration,
as such merely basing on the Dying Declaration, conviction
cannot be given to the accused.
15. The Hon'ble Apex Court in the case of Nikhil Chandra
Mondal Vs. State of West Bengal, 2 held that if two reasonable
conclusions are possible on the basis of evidence on record,
appellate Court should not disturb the finding of acquittal
recorded by the trial Court.
2023(3) SCC (Cri) 63 DB
16. There is double presumption in favour of accused.
Presumption of innocence available to him under fundamental
principle of criminal jurisprudence is that every person shall be
presumed to be innocent, unless he is proved guilty by a
competent Court of law. As accused is acquitted presumption of
innocence is further reinforced, reaffirmed and strengthened by
the Court.
17. P.W.3 is the son of the deceased. He was eye witness to
the occurrence. Immediately after the incident, he informed the
same to the elders who were standing on the road at the time of
incident, but it was suggested that he was not in the village at
the time of incident, but P.Ws.1 and 4 stated that P.W.3
informed to them about the incident, as such the presence of
P.W.3 in the village at the time of incident cannot be ruled out.
Everyone stated that accused poured kerosene on his wife and
set her ablaze. Though, P.W.9 stated that accused picked up a
firewood stick from oven (Kattelapoyyi) and set her to fire, he did
not state about pouring of Kerosene on her. P.W.3 stated that at
the time of incident, his mother was cooking food. So also, in
the evidence of P.W.17, it was stated that P.W.3 stated only the
name of Mahender, but not the names of other members. P.W.2
did not state before the police that her grandson approached
him and informed about the incident. P.W.3 did not state before
him that his father suspected the character of his mother. So
also, P.W.6 did not state that they advised the accused to reside
separately. In a Criminal Jurisprudence, it is for the
prosecution to prove the guilt of the accused beyond reasonable
doubt, if there is any doubt, the benefit of doubt shall be
extended to the accused. In this case, P.W.3 is the only eye
witness, but he has not clearly stated that his father set his wife
ablaze by picking up a firewood from oven (Kattelapoyyi). Even
the deceased in her Dying Declaration simply stated that her
husband poured kerosene on her and set her ablaze. P.W.1
stated that when deceased and accused were residing in his
house, they lived happily and on the advise of the elders, he
kept them separately from the past 6 months prior to the
incident. The trial Court discussed the entire evidence at length
and rightly acquitted the accused and this Court finds no
reason to interfere with the Judgment of the trial Court.
18. In the result, the Criminal Appeal is dismissed,
confirming the Judgment of the trial Court dated 20.05.2011, in
S.C.No.56 of 2010.
Pending miscellaneous petitions, if any, shall stand
closed.
________________________
JUSTICE K.LAKSHMAN
_________________________
JUSTICE P.SREE SUDHA
DATE: 16.02.2024
tri
