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2004 DIGILAW 1253 (AP)

K. Satyanarayana v. State Of A. P.

2004-10-28

P.S.NARAYANA

body2004
( 1 ) (CRIMINAL Appeal under Section 374 (2) of Crl. P. C. against the Judgment dated 24/11/1998 in SC No. 521 of 1995 on the file of the Court of the V Additional Metropolitan Sessions Judge, Mahila Court Hyderabad ). The appellants herein moved an application i. e. Crl. M. P. No. 6469 of 2004 under Section 391 of Code of Criminal Procedure for the purpose of reception of additional evidence, which are certified copy of Judgment in C. C. No. 141 of 1997 on the file of XXII Metropolitan Magistrate-cum-Mahila Court, Hyderabad and also certified copy of deposition of PW1 in the said C. C. No. 141 of 1997. ( 2 ) IT is stated in the affidavit that the mother of the deceased, who also figured as PW1 in C. C. No. 141 of 1997 filed for offences under Section 406 read with 34 of Indian Penal Code on the self same set of facts, against the appellants, had ended in acquittal by Judgment dated 5th August, 2000, it is also stated that during the examination in C. C. No. 141 of 1997, PW1 admitted that it is true that the matter had been settled outside the Court before the elders between PW1 and the petitioners-appellants and she had deposed at the instance of local people in Sessions Case No. 521 of 1995 and inasmuch as her daughter is no more, she is not interested in prosecuting the accused any more and she had deposed that her daughter had given dying declaration before the Magistrate hastily at her instance. ( 3 ) THE learned counsel placed strong reliance on State of Gujarat v. Mohanlal Jitamalji Porwal And another 1987 SC 1321 and also Rambhu and another v. State of Maharashtra 2001 (2) Crl. L. J. 2343 and would contend that in the interest of justice these documents may have to be received as additional evidence. The certified copy of the deposition of PW1 in C. C. No. 141 of 1997 being the statement of a living person cannot be received as additional evidence by this Court and in the event of this Court being satisfied that PW1 may have to be examined again, in the light of the settlement made by her in C. C. No. 141 of 1997, the matter may have to be sent back. Hence, this Court is not inclined to receive the certified copy of the deposition of the living person PW1. But however, as far as the certified copy of the Judgment in C. C. No. 141 of 1997 is concerned, this is a judgment made by a competent Criminal court XXII Metropolitan Magistrate-cum-Mahila Court, Hyderabad and hence, the same is received as additional evidence and marked as Ex. D. 2 in the present appeal. ( 4 ) SRI T. Prasanna Kumar, learned counsel representing the appellants had taken this court through the evidence available on record and would contend that the learned Judge recorded a clear finding that Ex. P. 6 was not recorded in accordance with the Criminal Rules of Practice, but however, placed reliance on Ex. P3. The counsel would submit that even in Ex. P3, there is no incriminating material as against the appellants and even otherwise, the evidence of PW1 in the present case also would not inspire confidence for the reason that her evidence was recorded in another matter C. C. No. 141 of 1997 on similar set of facts and clear findings had been recorded and acquittal also had been recorded. The learned counsel also pointed out the other legal infirmities and would contend that the learned Judge is not justified in convicting the appellants-accused. ( 5 ) PER contra, the learned Additional Public Prosecutor would submit that this settlement, if any was arrived at subsequent to this Judgment and evidently it appears that PW1 had settled the matter and deposed in a particular fashion which had been recorded. While, recording the findings in C. C. No. 141 of 1997 and inasmuch as the offences are in present matter serious nature and not compoundable, the findings are sustainable and the conviction and sentences are to be confirmed. ( 6 ) HEARD both the learned counsel. ( 7 ) THE facts of the case are as hereunder: a1 is son of A2. Both are residents of Vittalwadi, Narayanaguda, Hyderabad. A1 is a painter. A2 is an attender in Excise Department. Defacto complainant is wife of A1 and daughter of PW1. LW3 is father of deceased Rajeswari. LWs 4 and 6 are eyewitnesses. LW5 is eyewitness to the shifting of injured to Osmania General Hospital. LWs 7 to 9 are circumstantial witnesses. Both are residents of Vittalwadi, Narayanaguda, Hyderabad. A1 is a painter. A2 is an attender in Excise Department. Defacto complainant is wife of A1 and daughter of PW1. LW3 is father of deceased Rajeswari. LWs 4 and 6 are eyewitnesses. LW5 is eyewitness to the shifting of injured to Osmania General Hospital. LWs 7 to 9 are circumstantial witnesses. LWs10 to 13 are panch witnesses at the time of inquest and also at the time of observation of scene of occurrence. LW14 photographer, PW7 is MRO, who conducted inquest over the dead- body of deceased Rajeshwari. PW5 is XVI Metropolitan Magistrate, who recorded the dying declaration of Rajeswari. PW8 is doctor, who conducted postmortem examination over the dead-body of Rajeswari and issued post mortem certificate. LWs 18 to 20 are the Investigating Officers. As per the version of dying declaration of Rajeswari she was given in marriage to A1 about 3 years back i. e. in the year 1989 and after marriage she joined her husband and mother in-law at Vittalwadi. At the time of her marriage her parents gave cash of Rs. 16,000/- two tolas of gold, and a house situated at Lalithabagh. The house was conveyed to the deceased Rajeswari. A1 and A2 made a demand for documents of the house to be transferred in the name of A1 and started ill treating and harassing the deceaseds Rajeswari and they also left her, at her parents house with the same demand and stipulated a condition that unless she brings the documents, she should not step into their house. Later on LW10 went and informed to the deceased and her mother about the efforts of A1 for marrying another girl and advised them to send the deceased to join A1. Again A1 and A2 started ill-treating her for non-fulfillment of their demand to get the documents and deserted her on 2. 6. 1992. Despite intervention of elders of the locality, A1 did not evince any interest in taking deceased Rajeswari back to his house. On 27. 6. 1992 at 3. 00 p. m. A1 went to the house of deceased Rajeswaris parents and demanded to throw away the articles of deceaseds father and mother, where they were residing and also threatened to give divorce to her. On 28. 6. On 27. 6. 1992 at 3. 00 p. m. A1 went to the house of deceased Rajeswaris parents and demanded to throw away the articles of deceaseds father and mother, where they were residing and also threatened to give divorce to her. On 28. 6. 1992 LW10 a colleague of A2 went and pacified and mediated, but accused did not pay any attention and the complainant felt that it was improper to sent her out from their house. On account of this unbearable ill treatment and harassment deceased Rajeswari closed the doors of the house and poured kerosene on her and set fire, thereafter, neighbours went and forcibly opened the doors and shifted her to Hospital. While she was undergoing treatment a dying declaration was recorded by PW5. She succumbed to injure on 28. 6. 1992 at hospital. ( 8 ) THE evidence of PWs 1 to 10 had been recorded and EXs. P1 to P. 11 and Mos1 to 3 were marked. Ex. D. 1 is the relevant portion of 161 Cr. P. C. statement of PW3 and EX. D. 2 is the certified copy of the Judgment in C. C. No. 141 of 1997 on the file of XXII Metropolitan Magistrate-cum Mahila Court, Hyderabad, which is received by this Court, Hyderabad, which is received by this Court as additional evidence. ( 9 ) A competent Criminal Court on similar set of facts while dealing with the evidence of PW1 had recorded the findings at para 9 as hereunder: in the instant case, PW1 has deposed on oath that her deceased daughter Rajeswari was married to A1 on 19. 10. 1989 at Hyderabad. A2 is the mother of A1. That her daughter committed suicide in the year 1992 and after the death of her daughter, due to some disputes between her and the accused, she hastily lodged complaint which is marked Ex. P1. The learned APPO declared witness hostile. On the other hand, PW1 has clearly admitted in her cross examination that the matter was settled outside the court before the elders. Now that her daughter is no more, she is not interested in prosecuting the accused anymore. That her daughter had given dying declaration before the Honble Magistrate hastily at her instance. ( 10 ) APART from this aspect, the learned Judge had discarded Ex. Now that her daughter is no more, she is not interested in prosecuting the accused anymore. That her daughter had given dying declaration before the Honble Magistrate hastily at her instance. ( 10 ) APART from this aspect, the learned Judge had discarded Ex. P. 6 on the ground that the same was not recorded in accordance with law. Even in Ex. P. 3-dying declaration when a question was posed, was your husband looking after me well and my mother in law is only cause for this incident. When the next question was posed how she has treated you? The answer recorded was that she used to be good towards me, but she used to pressurize me to bring the house documents. On careful scrutiny of Ex. P. 3, except these statements nothing serious or incriminating can be culled out. Apart from this aspect of the matter, it is pertinent to note that PW1 herself had taken stand is yet another proceeding referred to supra that due to her pressure and in undue haste, the said dying declaration was made by her deceased daughter. ( 11 ) IN the light of the same, the evidence of PW1 relating to the harassment and other aspects may have to be looked with strong suspicion. No doubt, PW1 had deposed several details in the present case. PW2 and PW3 had also supported the version of PW1. PW4 was examined in relation to Ex. P1 panchanama and PW5 was examined in relation to Ex. P2 and Ex. P3. No doubt, this witness deposed that he had taken all precautions well of recording the dying declaration as contemplated under Rule 33 of Criminal rules of Practice and doctor was present throughout the recording of dying declaration. PW6 deposed about Ex. P. 5 inquest report. PW7 also deposed about Ex. P4 and PW8 deposed about Ex. P. 5- postmortem report. PW9 is the Sub Inspector of Police, who is the Assistant Commissioner of Police, who verified the investigation done by the Circle Inspector of Police and about the filing of the charge sheet. This is the evidence available on record. ( 12 ) THOUGH there are certain variations present in Ex. P. 6 and P. 3, the learned Judge recorded certain reasons and placed reliance on Ex. P. 3 and other evidence available on record and had recorded the conviction and imposed the sentence. This is the evidence available on record. ( 12 ) THOUGH there are certain variations present in Ex. P. 6 and P. 3, the learned Judge recorded certain reasons and placed reliance on Ex. P. 3 and other evidence available on record and had recorded the conviction and imposed the sentence. The specific version of the prosecution is that in view of the harassment and the demand, the deceased committed suicide at her mothers house. ( 13 ) IN the light of the findings recorded in Ex. D2 yet another prosecution, which had been made by PW1 herself on the self same set of facts, the evidence of PW1 in the considered opinion of this Court is highly unreliable, especially in the light of the findings recorded by the learned XXII Metropolitan Magistrate Hyderabad in C. C. No. 141 of 1997. In view of Ex. P. 3 and also in the light of the evidence of PW1 and findings recorded in Ex. D2 and also the variations in between Ex. P. 3 which had been recorded in accordance with law under Rule 33 of Criminal Rules of Practice and Ex. P. 6 the evidence available on record is not sufficient to sustain the conviction and the sentence imposed by the learned judge. ( 14 ) FOR the reasons recorded above this Court is of the considered opinion that this is not a case where a retrial may have to be ordered since only the certified copy of the deposition of a competent Court had been received by this Court and nothing more, hence, the findings recorded by the learned Judge are hereby set aside and appellants-accused are entitled for an acquittal and accordingly acquittal is hereby recorded. The appeal is allowed. The bail bonds of the appellants shall stand cancelled.