Telangana High Court
Shaik Chand Pasha, Hyd., vs The State Of Telangana, Rep Pp., on 5 November, 2024
HON'BLE SRI JUSTICE K.SURENDER
And
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
CRIMINAL APPEAL No.89 OF 2016
JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. The appellant/A1 was convicted for the offence under
Section 302 IPC and sentenced to life imprisonment vide
judgment in S.C.No.374 of 2011 dated 29.10.2015 passed by the
VIII Additional District and Sessions Judge, at Medak.
Questioning the said conviction, present appeal is filed.
2. Briefly, the case of the prosecution is that A1 along with A2
to A5 have conspired and murdered the deceased who is the
husband of A5. The reason for the murder is that A1/appellant
and A5 were having an affair and the deceased objected to it. For
the said reason, there was a fight in between the appellant,
deceased and A5. The deceased was kidnapped from Lakdikapool
by A1 to A4 and put in an auto on 26.12.2010. He was taken
near a village in Medak District. The deceased was dragged out of
the auto and A1 poured kerosene and set deceased on fire. The
said incident was witnessed by P.W.2. Hearing P.W.2 shout and
also seeing other villagers, all the accused left. P.W.2 did not
identify any of the accused.
3. P.W.2 along with other villagers shifted deceased to the
Medak Government Hospital. Requisition was given by Sub-
Inspector of Police to P.W.3, Tahsildar of Medak, for recording the
Dying Declaration of the deceased. Around 9.35 p.m, on the same
day, P.W.3 went to the hospital and the duty Doctor/P.W.4
having certified that the deceased was conscious and in a sound
state of mind, P.W.3 recorded the statement/ Dying Declaration.
In the statement made to P.W.3, the deceased narrated that the
appellant was having illicit relation with his wife/A5. A1 and
three others kidnapped him and took him to Ralamadugu village,
beat him and the appellant poured kerosene and set him ablaze.
Hearing the deceased crying, the appellant and others fled. Left
thumb impression of the deceased was taken on the Dying
Declaration/statement recorded by P.W.3, which is Ex.P2. After
recording statement also P.W.4 endorsed that the deceased was
in a fit state of mind during the statement being recorded.
4. The deceased died on 29.12.2010 while undergoing
treatment. Ex.P1 complaint was filed by the brother of the
deceased P.W.1 on 30.12.2010 alleging that the appellant and
others have killed the deceased.
5. The police, having conducted investigation, filed charge
sheet against the appellant/A1 and A2 to A5. Learned Sessions
Judge having framed charges for the offences of kidnapping and
murder of the deceased, examined relevant witnesses. Learned
Sessions Judge found that the prosecution has failed to prove the
complicity of A2 to A5 and accordingly, acquitted them.
6. Learned counsel appearing on behalf of the appellant mainly
relied on the Dying Declaration and the evidence of P.W.12, who
is the Doctor, who conducted autopsy of the dead body.
According to the Doctor/P.W.12, the injuries were ante-mortem
mixed flame burns preset all over body except scalp and soles of
both feet. The cause of death is due to the shock due to burns.
Ex.P15 is the report.
7. Learned counsel submits that when there are burns all over
the body except scalp and soles, as stated by P.W.12, the
question of deceased putting thumb impression on the Dying
Declaration recorded by P.W.3 does not arise. Learned counsel
relied on the judgment of the Hon'ble Supreme Court in the case
of State of Punjab v. Gian Kaur and another 1, wherein it is held
as follows:
AIR 1998 Supreme Court 2809
"5. The High Court disbelieved the dying declaration on the ground that
even though according to the medical evidence Rita had 100% burns,
the thumb mark of Rita appearing on the dying declaration had clear
ridges and curves. The High Court found the evidence of Dr Ajay
Sahni-PW 1 not reliable as he failed to satisfactorily explain how such
a thumb mark could appear on the dying declaration when Rita had
100% burns over her body. The High Court relied upon the deposition
of Doctor Aneja, who had performed the post-mortem and who has
categorically stated that there were 100% burns over her body and
both the thumbs of Rita were burnt. In view of such inconsistent
evidence, the High Court was right in giving benefit of doubt to the
respondents. It cannot be said in this case that the High Court has
taken an unreasonable view."
8. As seen from the judgment, the Hon'ble Supreme Court held
that when there was 100% burns all over the body, the question
of clear ridges and curves appearing on the thumb impression
would not arise, on such basis, both the Courts below had
acquitted the appellant and upheld by the Hon'ble Supreme
Court.
9. Learned counsel also relied on the judgment in the case of
Abhishek Sharma v. State (Govt.of NCT of Delhi) 2. Learned
counsel emphasized on paras 11 and 34 of the judgment. The
Hon'ble Supreme Court found that when there is no evidence of
light to view the accused or that there was any kind of animosity
in between the accused and the deceased, the Hon'ble Supreme
Court extended benefit of doubt.
2023 SCC OnLine SC 1358
10. Learned counsel also relied on the judgment in the case of
Nand Lal and others v. State of Chattisgarh 3. In the said
judgment also, the Hon'ble Supreme Court laid emphasis on
there being no light during night time when incident happened.
The Hon'ble Supreme Court held that the evidence of witnesses
can be characterized as (i) wholly reliable one (ii) wholly
unreliable; (iii) neither wholly reliable nor wholly unreliable.
Counsel argued that in the present case, except the evidence of
the deceased, there is no other evidence and since recording of
the statement of the deceased by P.W.3 is doubtful, conviction
has to be set aside.
11. Learned Additional Public Prosecutor defended the findings
of the learned Sessions Judge.
12. In the present facts, the motive for murder was affair in
between the appellant and A5, who is the wife of the deceased.
Even according to the evidence of P.W.1, brother and also the
complainant, there was quarrel in between the appellant and the
deceased on account of the appellant having an affair with his
wife/A5. It cannot be said that A1 is a stranger to the deceased.
(2023) 10 SCC 470
Even on the date of the incident, according to the deceased, he
was taken from Lakdikapool area of Hyderabad and travelled a
considerable distance till Medak, which is more than 100 kms
from Hyderabad and thereafter, he was set on fire by pouring
kerosene by A1. The question of there being no light when
incident has taken place or that the identity by accused being
doubtful as argued by the learned counsel does not arise.
Though, benefit of doubt was extended to A2 to A5 that in itself
would not absolve or cannot be a ground to acquit the appellant.
13. There is no reason why P.W.3, who is the responsible officer
would record something that was not stated by the deceased. The
deceased was taken to the hospital by the villagers and there
P.W.3 was requisitioned by P.W.4 Duty Doctor. P.W.3 went there
and P.W.4, who was working as Medical Officer was present when
the statement was recorded. Even after recording the statement
of the deceased, P.W.4 endorsed regarding the state of mind of
the deceased that he was in a position to give the statement.
There is no reason why the evidence of two responsible officers
P.Ws.3 and 4 had to be disbelieved.
14. The main thrust of the argument of the learned counsel for
the appellant was that on the basis of the evidence of the
Doctor/P.W.12, all other parts of the body were burnt except
scalp and soles. It cannot be assumed that the thumb was totally
burnt. In the case relied on by the learned counsel in the case of
Gian Kaur's case (supra), it was specifically mentioned that there
were 100% burns all over the body and thumbs were burnt.
Similar is not the case on hand. On facts, the present case differ.
Unless it was asked by the counsel before the Court below or it
was shown that the thumbs were completely burnt, the question
of assuming that the thumbs were burnt on the basis of P.W.12's
evidence that "Antemortem mixed flame burns present all over
body except scalp and soles of both feet" is incorrect.
15. There are no grounds to interfere with the well reasoned
judgment of the trial Court.
16. Accordingly, Criminal Appeal is dismissed.
__________________
K.SURENDER, J
_________________________________
ANIL KUMAR JUKANTI, J
Date : 05.11.2024
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