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Andhra High Court · body

2002 DIGILAW 689 (AP)

Syed Hussain Khaleelulla v. State Of A. P.

2002-06-07

M.NARAYANA REDDY, R.M.BAPAT

body2002
RAMEAH MADHAV BAPAT, J. ( 1 ) THE sole accused in Sessions Case no. 558/1997, which was decided by the learned Sessions Judge, Ananthapur, is the appellant herein. He was tried for an offence punishable under Section 302 IPC. On evidence, the learned Sessions Judge found him guilty of the said offence and, therefore, proceeded to convict and sentence him to suffer imprisonment for life. ( 2 ) THE gravamen of the charge against the accused was that on 15-3-1997 at about 5. 30 p. m. , in the house bearing No. 8/721-5, indira Nagar in Tadipatri, he caused the death of his wife Syed Noor Jahanby pouring kerosene on her and setting her on fire. ( 3 ) THE prosecution story can be briefly narrated as follows: The deceased was the wife of the accused. Their marriage was performed ten years prior to the incident. They were blessed with two children. They were residing at Tadipatri. Since March 1996, the accused was suspecting the fidelity of his wife and, therefore, he was abusing her. ( 4 ) ON 15-3-1997 at about 5. 30 p. m. , the accused brought a scooter belonging to somebody. The deceased took an objection for riding the scooter on the ground that if any damage was caused to it, they would have to get it repaired. The accused grew wild and abused and slapped the deceased. He poured kerosene on her person and set her on fire. The deceased raised cries and p. Ws. 2 to 4 came there and extinguished the fire. The deceased was shifted to Government hospital, Tadipatri. ( 5 ) P. W. 10, Civil Assistant Surgeon, government Hospital, Tadipatri, admitted the deceased at about 6. 15 p. m. He found 90 per cent burns on the person of the deceased. He sent Ex. P-10 Hospital intimation to police. P. W. 9, Head Constable, Tadipatri Town police, received Ex. P-10. He made an entry in the General Diary and proceeded to the hospital and recorded the dying declaration of the deceased in the presence of P. W. 3 and the Doctor P. W. 10. Ex. P-11 is the dying declaration. Ex,p-13 is the endorsement of the Doctor on Ex. P-11. ( 6 ) P. W. 9 Head Constable, on the strength of the statement of the deceased Ex. Ex. P-11 is the dying declaration. Ex,p-13 is the endorsement of the Doctor on Ex. P-11. ( 6 ) P. W. 9 Head Constable, on the strength of the statement of the deceased Ex. P-11, registered the case in Crime No. 39/1997 against the accused under Section 307 IPC and issued copies of the FIR to all concerned. Ex. P-12 is the FIR sent to the court. After registering the case, P. W. 9 again went to the hospital and recorded the statement of the deceased under Section 161 Cr. P. C. ( 7 ) ON the same day i. e. , 15-3-1997, at about9. 30p. m. ,p. W. 1 Magistrate, Tadipatri, on receipt of requisition from P. W. 10 the doctor, proceeded to the Hospital and recorded the dying declaration of the deceased in the presence of P. W. 10. The dying declaration was recorded between 9. 45 p. m. , and 10. 25 p. m. Ex. P-2 is the dying declaration. Ex. P-14 is the endorsement of the Doctor on the dying declaration. The deceased died at about 11. 15 p. m. on the same day. P. W. 10 sent Ex. P-15 death intimation to the police station. ( 8 ) ON 16-3-1997 at about 4. 30 p. m. , p. W. 12 Inspector of Police, received the death intimation. He altered the section of law from 307 to 302 IPC. He issued copies of the altered FIR to all concerned. ( 9 ) THEREAFTER, he held inquest over the dead body of the deceased in the presence of p. W. 11 between 8 a. m. and 11 a. m. Ex. P-17 is the inquest report. During the inquest, he examined P. Ws. 2 to 6 and recorded their statements. He visited the scene of offence and prepared Panchanama of the scene of offence, which is produced on record at ex. P-9. He seized M. O. 1 kerosene tin and m. O. 2 burn cloth pieces. ( 10 ) P. W. 7, Dy. Civil Surgeon, Government hospital, Tadipatri, conducted autopsy over the dead body of the deceased on 16-3-1997 at 1. 00 p. m. Ex. P-8 is the post-mortem report. According to the Doctor, the deceased died due to shock and asphyxia due to extensive deep 90 per cent burns. On completion of investigation, P. W. 12 filed charge-sheet on 30-6-1997. Civil Surgeon, Government hospital, Tadipatri, conducted autopsy over the dead body of the deceased on 16-3-1997 at 1. 00 p. m. Ex. P-8 is the post-mortem report. According to the Doctor, the deceased died due to shock and asphyxia due to extensive deep 90 per cent burns. On completion of investigation, P. W. 12 filed charge-sheet on 30-6-1997. ( 11 ) IN order to prove the guilt of the accused, prosecution examined P. Ws. 1 to 12. Out of the witnesses examined, p. Ws. 2 to 6 and 11 did not support the prosecution. They were declared hostile. Prosecution filed certain documents, which were marked as Exs. P-1 to P-18. The material objects were marked as M. Os. 1 and 2. ( 12 ) THE defence of the accused is of total denial. ( 13 ) IN order to prove that the deceased died a homicidal death, prosecution relied upon the evidence of P. W. 12 Inspector of police, who conducted inquest over the dead body of the deceased in the presence of p. W. 11. Unfortunately, P. W. 11 did not support the prosecution, Ex. P-17 is the inquest report. ( 14 ) AFTER the inquest was over, the dead body of the deceased was sent for postmortem examination. P. W. 7, whohappened to be working as Deputy Civil Surgeon, government Hospital, Tadipatri, on receipt of requisition from the police, conducted autopsy over the dead body of the deceased on 16-3-1997 at 1. 00 p. m. On external examination of the dead body, he found the following external injuries:"the body was moderately built and nourished and aged 28 years lying on its back with lower limbs extended and upper limbs slightly flexed atelbowjoints and forearms in probation, eyes closed. Abdomen slightly distended. Blackish colour over burnt areas present. Burns over face, neck, chest, abdomen, back perineum, both upper and lower limbs present. Area of redness surrounding burns areas present. Singeing of hair of eyebrows, eye lashes, pubic hair present. Rigor mortis present in both upper and lower limbs. Peeling of skin here and there over the body present. Kerosene smell over the body present. Black scalp hair 15" in length present. Fingernails appear bluish. Burns are ante-mortem in nature. Burns are 90%. " ( 15 ) ON internal examination of the dead body, P. W. 7 found the following internal injuries. Peeling of skin here and there over the body present. Kerosene smell over the body present. Black scalp hair 15" in length present. Fingernails appear bluish. Burns are ante-mortem in nature. Burns are 90%. " ( 15 ) ON internal examination of the dead body, P. W. 7 found the following internal injuries. "head and neck: On opening the skull, meninges and brain appear congested. On cut section appear congested. Tissues appear normal Hyoid bone and thyroid cartilage appear normal. Thorax: Heart appears normal in size. On cut section chambers contained blood, tissues appear normal. Lungs on both sides swollen, appear red; on cut section congested exude plenty of dark blood. Abdomen: Stomach is empty. Mucosa appear normal, intestines contain gases. Liver appears normal in size; oft cut section it is congested. Spleen is enlarged. On cut section, congested. Kidneys on both sides appear normal in size; on cut section appear normal. Bladder is empty. Rectum is empty. Uterus appears normal in size; on cut section appear normal. Spine and pelvis appear normal. " ( 16 ) THE Doctor opined that the deceased died due to shock due to extensive burns to the extent of 90 per cent. He issued postmortem certificate Ex. P-8. ( 17 ) CONSIDERING the evidence led by the prosecution on the point of homicidal death, we do hold that the deceased did die a homicidal death. ( 18 ) IN order to connect the accuseu with the crime, many witnesses were examined, as stated earlier. Unfortunately, none of them supported the prosecution. Therefore, we have the evidence only in the form of dying declarations. Ex. P-2 is the dying declaration of the deceased recorded by the learned magistrate in which the deceased had categorically stated that the accused was suspecting her character and, therefore, he used to harass and beat her. On the date of incident, the accused came to the residence on a scooter belonging to somebody. Therefore, she expressed her displeasure. Thereupon, the accused poured kerosene on her person and set her on fire. The said dying declaration was endorsed by the Doctor. The endorsement, in which the Doctor certified that the patient was conscious and in fit condition, is at Ex. P-14. ( 19 ) THE second dying declaration is ex. Therefore, she expressed her displeasure. Thereupon, the accused poured kerosene on her person and set her on fire. The said dying declaration was endorsed by the Doctor. The endorsement, in which the Doctor certified that the patient was conscious and in fit condition, is at Ex. P-14. ( 19 ) THE second dying declaration is ex. P-11, which is the first in the order of time, which was recorded by P. W. 9 Head constable, on receipt of hospital intimation about the admission of a patient with burn injuries. , On the strength of the said statement, the offence was registered. In Ex. P-11 the deceased categorically stated that the accused poured kerosene on her person and set her on fire. ( 20 ) LEARNED counsel Mr. T. Pradyumna kumar Reddy, appearing for the accused- appellant, submitted at the Bar that the dying declaration recorded by the learned magistrate cannot be believed since no proper endorsement was made on it by the Doctor certifying the mental condition of the patient as laid down by the Supreme Court in paparambaka Rosamma v. State of A. P. In para 9 of the judgment, their Lordships were pleased to hold as under:"in is true that the Medical Officer dr. K. Vishnupriya Devi (P. W. 10) at the end of the dying declaration had certified "patient is conscious while recording the statement". It has come on record that the injured Smt Venkata Ramana had sustained extensive burn injuries on her person. Dr. P. Koteswara Rao (P. W. 9) who performed the post-mortem stated that injured had sustained 90% burn injuries. In this case as stated earlier, the prosecution case solely rested on the dying declaration. It was therefore, necessary for the prosecution to prove the dying declaration being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by dr. Smt. K. Vishnupriya Devi (P. W. 10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that "patient is conscious while recording the statement". Smt. K. Vishnupriya Devi (P. W. 10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that "patient is conscious while recording the statement". In view of these material omissions, it would not be safe to accept the dying declaration (Ex. P-14) as true and genuine and was made when the injured was in a fit state of mind. From the judgments of the courts below, it appears that this aspect was not kept in mind and resultantly erred in accepting the said dying declaration (Ex. P-14) as a true, genuine and was made when the injured was in a fit state of mind. In medical science, two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction as overlooked by the courts below". ( 21 ) THE learned counsel for the appellant submits that in view of the above decision of the Supreme Court, no reliance can be kept on the dying declaration of the deceased. We are not prepared to accept the contention of the learned counsel for the appellant. Admittedly, the Doctor made the endorsement on the dying declaration ex. P-2 as follows:"patient is conscious and in fit condition while recording the statement and the statement is recorded in my presence". ( 22 ) THE Doctor certified that the patient was in a fit condition. "fit condition" means that the patient is physically as well as mentally fit to give dying declaration. Therefore, we are of the considered view that it is sufficient compliance with the requirement of the above Ruling of the supreme Court when the Doctor certified mat the patient was in a conscious and fit condition. Moreover, the Head Constable as well as the Magistrate recorded the dying declarations of the deceased. By reading them, it is evident that the version given by the deceased at two different times to two different persons, is one and the same. It itself goes to prove that the deceased was mentally fit to give dying declarations. Moreover, the Head Constable as well as the Magistrate recorded the dying declarations of the deceased. By reading them, it is evident that the version given by the deceased at two different times to two different persons, is one and the same. It itself goes to prove that the deceased was mentally fit to give dying declarations. ( 23 ) THEREFORE, we are of the considered view that the dying declarations of the deceased inspire confidence and the conviction based on such dying declarations is perfectly justifiable. ( 24 ) WE do not wish to interfere with the order of conviction and sentence passed by. the learned Sessions Judge. The appeal is dismissed.