Telangana High Court
The State Of Telangana.,Rep.,Pp vs Ambati Srinivas And 3 Others on 3 September, 2024
Author: P. Sam Koshy
Bench: P.Sam Koshy, N.Tukaramji
IN THE HIGH COURT FOR THE STATE OF TELANGANA:
HYDERABAD
***
CRIMINAL APPEAL No.1237 of 2016
Between:
The State of Telangana
rep. by the Public Prosecutor
Appellant
VERSUS
Ambati Srinivas and Others
Respondents
JUDGMENT PRONOUNCED ON: 03.09.2024
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
__________________
P.SAM KOSHY, J
Page 2 of 22
* THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
+ CRIMINAL APPEAL No.1237 of 2016
% 03.09.2024
# Between:
The State of Telangana
rep. by the Public Prosecutor
Appellant
VERSUS
Ambati Srinivas and Others
Respondents
! Counsel for Appellant(s) : Mr. Syed Yasar Mamoon,
learned Additional Public
Prosecutor.
^Counsel for respondent(s) : Mr. A.Bhupathi Reddy, learned
counsel, representing
Mr.Papaiah Peddakula.
<GIST:
> HEAD NOTE:
? Cases referred
1) 2023 SCC OnLine SC 1060
2) 2024 SCC OnLine SC 941
3) (2008) 5 SCC 468
4) 2010 8 SCC 514
5) (2013) 2 SCC 224
6) 2024 SCC OnLine SC 481
7) (1984) 4 SCC 116 = 1984 INSC 121
Page 3 of 22
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
CRIMINAL APPEAL No.1237 of 2016
JUDGMENT:
(per the Hon'ble Sri Justice P. SAM KOSHY)
Heard Mr. Syed Yasar Mamoon, learned Additional Public
Prosecutor for the appellant - State and Mr. A.Bhupathi Reddy,
learned counsel, representing Mr.Papaiah Peddakula, learned
counsel for the respondents - accused.
2. Aggrieved by the judgment of acquittal dated 27.01.2015 in
Sessions Case No.468 of 2012 passed by the V Addl. District Judge
at Bhongir, the instant appeal has been filed by the appellant -
State.
3. Vide the impugned judgment, the Trial Court found accused
No.1 not guilty for the offence punishable under Section 498-A and
309 of IPC. At the same time, accused Nos.2 to 4 were also found
not guilty for the offence punishable under Section 498-A and 302
read with Section 109 of IPC and all the accused persons stood
acquitted of all the charges leveled against each one of them.
4. The case of the prosecution, in brief, is that the deceased
Ambati Manasa was the wife of accused No.1. It is the case of the
complainant (father of the deceased) that accused No.1 and his
daughter initially had a happy married life for about six months
time. Thereafter, accused No.1 started harassing deceased on the
ground of dowry and he was continuously asking for additional
dowry of Rs.3,00,000/-. The complainant did manage to pay some
amount to accused No.1 so as to ensure that his daughter is not
harassed. Yet accused No.1 continued to harass the deceased and
used to often assault her and also used to doubt the fidelity of his
wife. Suddenly, on 23.04.2012 at around 02:00 A.M., the
complainant received a telephonic message that his daughter
suffered burn injuries and she has been shifted to Image Hospital,
Madhapur, Hyderabad, for treatment. The complainant
immediately rushed to the Image Hospital and found burn injuries
all over the body of the deceased except on her head. It was further
stated by the complainant that on enquiry, the deceased told him
that while she was lying on the bed and was feeding her infant
child, accused No.1 poured kerosene on her and lit fire.
Subsequently, he informed the police authorities. However, after
about seven days of treatment, his daughter died because of burn
injuries. According to the complainant, accused No.1 was
instrumental in burning his daughter to death. At the same time,
accused Nos.2 to 4 were all responsible for continuous harassment,
ill-treatment and torturing the deceased on the demand of dowry.
5. Based on the complaint of the father of the deceased, the
Police Station, Bibinagar at District Nalgonda lodged an FIR with
Cr.No.62 of 2012 dated 24.02.2012 was registered and investigated
upon. After investigation a charge sheet was filed and subsequently
the matter was put to trial before the Court of V Addl. District
Judge at Bhongir where the case was registered as S.C.No.468 of
2012.
6. The prosecution in all examined as much as sixteen
witnesses and exhibited as many as fourteen documents. There
were no witnesses examined, neither were there any documents
marked in support of defence. Thereafter, the statement of the
accused was recorded under Section 313 of Cr.P.C, and the Trial
Court after hearing the learned counsel appearing on either side,
finally passed the impugned judgment by acquitting the accused
persons of all the charges leveled against them.
7. Challenging the said impugned judgment of acquittal, the
learned Additional Public Prosecutor contended that it is a case
where the Trial Court has committed an error in not properly
appreciating the dying declaration of the deceased while acquitting
the accused persons. The learned Additional Public Prosecutor
heavily relied upon the two dying declarations of the deceased
recorded first by the police authorities immediately after the
incident and secondly that which is recorded by the Judicial
Magistrate subsequently on the same day. That the entire case of
prosecution rests upon the two dying declarations and where the
statement of the deceased in the two dying declarations are
consistent and is ample proof of accused No.1 being instrumental
in setting the deceased on fire, resulting in burn injuries which the
deceased suffered and also in respect of the accused persons all of
whom harassed the deceased continuously for a long time on some
pretext or the other, primarily on the ground of dowry and also
suspecting fidelity of the deceased.
8. It was also the contention of the learned Additional Public
Prosecutor that the dying declarations also stands proved by the
two officers who had recorded the same. That those officers are
independent persons and therefore there is no reason for the Trial
Court to have disbelieved the same and on that ground also the
impugned judgment warrants interference.
9. Learned Additional Public Prosecutor strongly contended that
since the two dying declarations stand duly proved before the Trial
Court and the two officers who had recorded the dying declarations
have also been subjected to cross-examination wherein nothing
much could be elicited in their cross-examination to disbelieve their
contention. Therefore, the finding of the Trial Court disbelieving the
aforesaid two dying declarations deserves to be held as improper
and bad in law and the judgment of acquittal disbelieving the two
dying declarations deserves to be set aside.
10. At this juncture it would relevant to take note of certain
admitted facts which are recovered in the course of recording of
evidences.
11. PW.1, the complainant, who is said to have visited the
deceased at the hospital on the same day of the incident in his
examination-in-chief before the Court stated as under:
"I rushed to IMAGE Hospital and I found burn injuries
all over the body except the head. On enquiry, she
informed me that while she was lying on the bed and
breast feeding her infant child, A-1 poured kerosene on
her and lit fire.
Deceased Manasa died while undergoing treatment
after seven days. I attended on deceased Manasa for
seven days. A-12 to A-4 beat deceased Manasa with
cheppal while A-1 caught-hold her one year prior to
death of deceased Manasa, asking her to leave their
house and to commit suicide."
12. At the same time, PW.1 in his cross-examination had stated
as under:
"I could not speak with deceased Manasa as she was
in serious condition and I was not allowed to go near
by her.
Deceased Manasa gave the statement to the
Magistrate to that effect. She also informed me on the
third day after admitting in the hospital. That A1
poured kerosine on her and set her ablaze at 12.00
mid night while she was lying on the bed."
13. Next coming to the dying declarations, it would reveal that
two dying declarations have been recorded on the same day by two
different authorities. One recorded by the ASI of Bibinagar Police
Station at around 5:00 P.M. and second dying declaration recorded
by the IV JFCM, Panjagutta, Hyderabad, on the same day at
around 5:20 P.M. From the evidence of PW.1 who had reached the
hospital immediately after the deceased was brought to hospital.
The deceased was not in a condition to speak and was very serious
and even he was not allowed to go near her. Such being the
condition, if we look at the two dying declarations it will clearly give
rise to certain serious doubts on the two statements. The first
doubt arises on account of both dying declarations verbatim same
which in the opinion of the Bench is very difficult to accept,
particularly taking into consideration the fact the deceased had
been admitted with 70% burn injuries over her body. Under the
said circumstances she could not have been in a condition to speak
so elaborately with so minute details. Secondly, in both the dying
declarations the deceased has made a statement that it was she
who had doused kerosene on her body from a kerosene lamp
available in the house. This statement of the deceased is just in
contradiction to the statement given by PW.1 who tried to make a
statement that the deceased informed her that it was accused No.1
who had poured kerosene and lit fire. Third reason to doubt the
dying declarations is the question No.3 put to the deceased and the
answer she gave to it to the Judicial Magistrate, which again for
ready reference is reproduced herein under:
"3. Do you tell anything more ?
Ans : Madam, my husband is responsible for the
burn injuries sustained by me. If he had not lit the
empty kerosene lamp, I would not have received the
burn injuries on my body."
The aforesaid answer of the deceased in fact gives rise to a
possibility of the deceased getting caught fire accidentally.
14. Undoubtedly in her dying declaration, both to the ASI as
also the Judicial Magistrate she has accepted that it was she
who had doused kerosene on her body. She further accepted in
both her statements that she slept on the floor with kerosene
doused clothes. At the end she says that if her husband /
accused No.1 would not had lit the empty lamp, she would not
have received burn injuries. This in other words means that
accused No.1 lit the kerosene lamp and not the deceased. Since
it was dark around midnight, because of kerosene having got
spilled over the entire area, the kerosene must have caught fire
and the deceased also in the process caught fire. As a result of
the same the deceased suffered burn injuries.
15. In addition, there also seems to be a conflicting evidence
when compared to the statement of PW.1 and also the statement
of the deceased and if all these statements have to be taken note
of along with the categorical statement of the deceased, it was
she herself who had doused her with kerosene. This gives rise to
a great element of doubt so far as the dying declarations given by
the deceased. In the said circumstances if the Trial Court has
given the benefit of doubt to the accused, the same cannot be
found fault with.
16. It would be relevant at this juncture to refer to a couple of
judgments of the Hon'ble Supreme Court on this subject matter.
The Hon'ble Supreme Court in the case of Irfan alias Naka v.
State of Uttar Pradesh 1 held as under; viz,
"44. The mode and manner, in which the dying
declarations came to be recorded, is also something
which creates a doubt, as regards its truthfulness and
trustworthiness. Although, the Investigating Officer
says that the recording of the dying declarations was
video-graphed and the CD has been exhibited in
evidence yet it is very important to determine the
evidentiary value of the same.
48. The justification for the sanctity/presumption
attached to a dying declaration, is two fold; (i) ethically
and religiously it is presumed that a person while at
the brink of death will not lie, whereas (ii) from a public
policy perspective it is to tackle a situation where the
only witness to the crime is not available.
57. This Court in Muthu Kutty v. State by Inspector of
Police, T.N., (2005) 9 SCC 113, while discussing the
decision in Woodcock (supra) referred to above had
2023 SCC OnLine SC 1060
cautioned the courts to ensure that a dying declaration
is reliable before relying on it, with the following
observations : -
14. ... The situation in which a person is on the
deathbed is so solemn and serene when he is
dying that the grave position in which he is
placed, is the reason in law to accept veracity
of his statement. It is for this reason that the
requirements of oath and cross-examination
are dispensed with. Besides, should the dying
declaration be excluded it will result in
miscarriage of justice because the victim being
generally the only eyewitness in a serious
crime, the exclusion of the statement would
leave the court without a scrap of evidence.
15. Though a dying declaration is entitled to
great weight, it is worthwhile to note that the
accused has no power of cross-examination.
Such a power is essential for eliciting the truth
as an obligation of oath could be. This is the
reason the court also insists that the
dying declaration should be of such a
nature as to inspire full confidence of the
court in its correctness. The court has to
be on guard that the statement of the
deceased was not as a result of either
tutoring, or prompting or a product of
imagination. The court must be further
satisfied that the deceased was in a fit
state of mind after a clear opportunity to
observe and identify the assailant. Once
the court is satisfied that the declaration
was true and voluntary, undoubtedly, it
can base its conviction without any
further corroboration. It cannot be laid down
as an absolute rule of law that the dying
declaration cannot form the sole basis of
conviction unless it is corroborated. The rule
requiring corroboration is merely a rule of
prudence. ..."
(Emphasis supplied)
62. There is no hard and fast rule for determining
when a dying declaration should be accepted; the duty
of the Court is to decide this question in the facts and
surrounding circumstances of the case and be fully
convinced of the truthfulness of the same. Certain
factors below reproduced can be considered to
determine the same, however, they will only affect the
weight of the dying declaration and not its
admissibility:--
(i) Whether the person making the statement
was in expectation of death?
(ii) Whether the dying declaration was made at
the earliest opportunity? "Rule of First
Opportunity"
(iii) Whether there is any reasonable suspicion
to believe the dying declaration was put in the
mouth of the dying person?
(iv) Whether the dying declaration was a
product of prompting, tutoring or leading at the
instance of police or any interested party?
(v) Whether the statement was not recorded
properly?
(vi) Whether, the dying declarant had
opportunity to clearly observe the incident?
(vii) Whether, the dying declaration has been
consistent throughout?
(viii) Whether, the dying declaration in itself is
a manifestation/fiction of the dying person's
imagination of what he thinks transpired?
(ix) Whether, the dying declaration was itself
voluntary?
(x) In case of multiple dying declarations,
whether, the first one inspires truth and
consistent with the other dying declaration?
(xi) Whether, as per the injuries, it would have
been impossible for the deceased to make a
dying declaration?
63. It is the duty of the prosecution to establish the
charge against the accused beyond the reasonable
doubt. The benefit of doubt must always go in favour
of the accused. It is true that dying declaration is a
substantive piece of evidence to be relied on provided it
is proved that the same was voluntary and truthful
and the victim was in a fit state of mind. It is just not
enough for the court to say that the dying declaration
is reliable as the accused is named in the dying
declaration as the assailant.
64. It is unsafe to record the conviction on the basis of
a dying declaration alone in the cases where
suspicion, like the case on hand is raised, as regards
the correctness of the dying declaration. In such cases,
the Court may have to look for some corroborative
evidence by treating the dying declaration only as a
piece of evidence. The evidence and material available
on record must be properly weighed in each case to
arrive at an appropriate conclusion. The reason why
we say so is that in the case on hand, although the
appellant-convict has been named in the two dying
declarations as a person who set the room on fire yet
the surrounding circumstances render such statement
of the declarants very doubtful."
17. Further, the Hon'ble Supreme in the case of Rajendra v.
State of Maharashtra 2 held at paragraph Nos.25 and 26 as
under:
"25. The law relating to dying declaration is now well
settled. Once a dying declaration is found to be
authentic inspiring confidence of the court, then the
same can be relied upon and can be the sole basis for
conviction without any corroboration. However, before
accepting such a dying declaration, court must be
satisfied that it was rendered voluntarily, it is
consistent and credible and that it is devoid of any
tutoring. Once such a conclusion is reached, a great
deal of sanctity is attached to a dying declaration and
as said earlier, it can form the sole basis for conviction.
26. Section 32(1) of the Indian Evidence Act,
1872 deals with dying declaration. Since the said
provision is relevant, it is extracted hereunder:
[32.] Cases in which statement of relevant fact
by person who is dead or cannot be found, etc.,
is relevant. - Statements, written or verbal, of
relevant facts made by a person who is dead,
or who cannot be found, or who has become
2024 SCC OnLine SC 941
incapable of giving evidence, or whose
attendance cannot be procured without an
amount of delay or expense which, under the
circumstances of the case, appears to the Court
unreasonable, are themselves relevant facts in
the following cases:--
(1) When it relates to cause of death. - When
the statement is made by a person as to the
cause of his death, or as to any of the
circumstances of the transaction which
resulted in his death, in cases in which the
cause of that person's death comes into
question.
Such statements are relevant whether the
person who made them was or was not, at the
time when they were made, under expectation
of death, and whatever may be the nature of
the proceeding in which the cause of his death
comes into question."
18. The Hon'ble Supreme Court in the case of Amol Singh v.
State of Madhya Pradesh 3 clarified that it is not the plurality of
the dying declarations that matter. On the contrary, it is the
reliability of a dying declaration which is significant. If there are
inconsistencies between one dying declaration and the other, the
Court has to examine the nature of the inconsistencies i.e.
whether those are material or not.
(2008) 5 SCC 468
19. The Hon'ble Supreme Court also in the case of Lakhan v.
State of Madhya Pradesh 4 held that where there are multiple
dying declarations with inconsistencies between them, the Court
would have to scrutinize the facts very carefully and thereafter
take a decision as to which of the declarations is worth reliance.
20. Again, in the case of Ashabai v. State of Maharashtra 5,
the Hon'ble Supreme Court observed that when there are
multiple dying declarations, each dying declaration has to be
separately assessed and evaluated independently on their own
merit as to the evidentiary value of each. One cannot be rejected
merely because of certain variations in the other.
21. So far as interfering with the judgment of acquittal in an
appeal by the Trial Court, it has been held by the Hon'ble
Supreme Court in a catena of decisions that unless there is
substantial strong evidence which is not been appreciated by the
Trial Court and where the commission of offence by the accused
is glaringly established, the judgment of acquittal is not be
interfered as a matter of routine. The Hon'ble Supreme Court in
2010 8 SCC 514
(2013) 2 SCC 224
the case of Ballu and Another v. State of Madhya Pradesh 6 in
paragraph Nos.6 to 9 observed as under:
"6. Undoubtedly, the prosecution case rests on
circumstantial evidence. The law with regard to
conviction on the basis of circumstantial evidence has
very well been crystalized in the judgment of this Court
in the case of Sharad Birdhichand Sarda v. State of
Maharashtra 7, wherein this Court held thus:
"152. Before discussing the cases relied upon by
the High Court we would like to cite a few
decisions on the nature, character and essential
proof required in a criminal case which rests on
circumstantial evidence alone. The most
fundamental and basic decision of this Court
is Hanumant v. State of Madhya Pradesh [(1952)
2 SCC 71 : AIR 1952 SC 343 : 1952 SCR
1091 : 1953 Cri LJ 129]. This case has been
uniformly followed and applied by this Court in a
large number of later decisions up-to-date, for
instance, the cases of Tufail (Alias) Simmi v. State
of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC
(Cri) 55] and Ramgopal v. State of
Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC
656]. It may be useful to extract what Mahajan, J.
has laid down in Hanumant case [(1952) 2 SCC
71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953
Cri LJ 129]:
2024 SCC OnLine SC 481
(1984) 4 SCC 116 = 1984 INSC 121
"It is well to remember that in cases where
the evidence is of a circumstantial nature,
the circumstances from which the conclusion
of guilt is to be drawn should in the first
instance be fully established, and all the
facts so established should be consistent
only with the hypothesis of the guilt of the
accused. Again, the circumstances should be
of a conclusive nature and tendency and
they should be such as to exclude every
hypothesis but the one proposed to be
proved. In other words, there must be a
chain of evidence so far complete as not to
leave any reasonable ground for a
conclusion consistent with the innocence of
the accused and it must be such as to show
that within all human probability the act
must have been done by the accused."
7. It can thus clearly be seen that it is necessary for
the prosecution that the circumstances from which the
conclusion of the guilt is to be drawn should be fully
established. The Court holds that it is a primary
principle that the accused 'must be' and not merely
'may be' proved guilty before a court can convict the
accused. It has been held that there is not only a
grammatical but a legal distinction between 'may be
proved' and 'must be or should be proved'. It has been
held that the facts so established should be consistent
only with the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis
except that the accused is guilty. It has further been
held that the circumstances should be such that they
exclude every possible hypothesis except the one to be
proved. It has been held that there must be a chain of
evidence so complete as not to leave any reasonable
ground for the conclusion consistent with the innocence
of the accused and must show that in all human
probabilities the act must have been done by the
accused.
8. It is settled law that the suspicion, however strong it
may be, cannot take the place of proof beyond
reasonable doubt. An accused cannot be convicted on
the ground of suspicion, no matter how strong it is. An
accused is presumed to be innocent unless proved
guilty beyond a reasonable doubt.
9. Apart from that, it is to be noted that the present
case is a case of reversal of acquittal. The law with
regard to interference by the Appellate Court is very
well crystallized. Unless the finding of acquittal is
found to be perverse or impossible, interference with
the same would not be warranted. Though, there are a
catena of judgments on the issue, we will only refer to
two judgments which the High Court itself has
reproduced in the impugned judgment, which are as
reproduced below:
"13. In case of Sadhu Saran Singh v. State of
U.P. (2016) 4 SCC 357, the Supreme Court has
held that:--
"In an appeal against acquittal where the
presumption of innocence in favour of the
accused is reinforced, the appellate Court
would interfere with the order of acquittal
only when there is perversity of fact and
!aw. However, we believe that the
paramount consideration of the Court is to
do substantial justice and avoid miscarriage
of justice which can arise by acquitting the
accused who is guilty of an offence. A
miscarriage of justice that may occur by the
acquittal of the guilty is no less than from
the conviction of an innocent. Appellate
Court, while enunciating the principles with
regard to the scope of powers of the
appellate Court in an appeal against
acquittal, has no absolute restriction in law
to review and relook the entire evidence on
which the order of acquittal is founded."
14. Similar, In case of Harljan Bhala Teja v. State
of Gujarat (2016) 12 SCC 665, the Supreme Court
has held that:--
"No doubt, where, on appreciation of
evidence on record, two views are possible,
and the trial court has taken a view of
acquittal, the appellate court should not
interfere with the same. However, this does
not mean that in all the cases where the trial
court has recorded acquittal, the same
should not be interfered with, even if the
view is perverse. Where the view taken by
the trial court is against the weight of
evidence on record, or perverse, it is always
open far the appellate court to express the
right conclusion after re-appreciating the
evidence If the charge is proved beyond
reasonable doubt on record, and convict the
accused.""
22. In the given factual backdrop and the judicial precedents
flowing from the Hon'ble Supreme Court on the subject matter
and also on interfering with the judgment of acquittal and for the
reasons narrated in the preceding paragraphs, we find it difficult
to interfere with the judgment of acquittal.
23. The instant appeal thus fails and is accordingly dismissed.
24. As a sequel, miscellaneous applications pending if any, shall
stand closed.
__________________
P.SAM KOSHY, J
__________________
N.TUKARAMJI, J
Date: 03.09.2024
Note: LR Copy to be marked.
B/o.GSD
