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2004 DIGILAW 585 (AP)

M. Venkata Ramana v. State Of A. P.

2004-06-21

B.SESHASAYANA REDDY, G.BIKSHAPATHY

body2004
B. SESHASAYANA REDDY, J. ( 1 ) THIS criminal appeal is directed against the judgment dated 21-3-2002 passed in S. C. No. 327 of 2001 on the file of Special Judge for trial of offences under SCs and STs (Prevention of Atrocities) Act-cum-VI additional Metropolitan Sessions Judge, secunderabad, by which the learned additional Metropolitan Sessions Judge found accused-M. V. Ramana guilty for the offence under Section 302 IPC and convicted him accordingly and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 1,000/- in default to suffer simple imprisonment for one month. However, the learned Additional Metropolitan Sessions judge found the accused not guilty for the offence under Section 304b IPC and acquitted him accordingly. ( 2 ) THE accused/appellant was put on trial before the Special Judge for trial of offences under SCs and STs (Prevention of atrocities) Act cum VI Additional metropolitan Sessions Judge, Secunderabad for the offence under Section 302 IPC alternatively for the offence under Section 304b IPC. ( 3 ) THE prosecution case in brief is as follows: p. W. 2 Smt. Kausalya is mother and p. W. 3 Rajita is younger sister of Smt. Hemalatha (hereinafter referred to as the deceased ). The accused married the deceased in the year 1995. They were blessed with a son. P. W. 3 was married to the brother of the accused in the year 1997. The accused was unemployed and whereas the deceased was employed as a clerk in E. S. I. Hospital. Some blickerings peeped into their marital life in the year 1997 i. e. , after the marriage of P. W. 3 with the brother of the accused. The accused did not allow the deceased to visit her parental home or her relatives houses. P. W. 5 Kurumurthy, maternal uncle of the deceased fell sick and hospitalized in the year 1999. P. W. 2 had gone to the office of the deceased and informed her about the ill health of her maternal uncle and asked her to call on him. The deceased ,told her mother that she would call on her ailing maternal uncle after informing the accused. On the night of the fateful day, she sought permission of the accused to see her ailing maternal uncle, which the accused refused. The deceased ,told her mother that she would call on her ailing maternal uncle after informing the accused. On the night of the fateful day, she sought permission of the accused to see her ailing maternal uncle, which the accused refused. On the intervening night of 3/4-8-1999 some quarrel took place between them over the refusal of the accused to permit her to see her ailing maternal uncle. The accused/appellant, in the said quarrel, took a kerosene tin from the kitchen room and poured kerosene on the deceased and lit fire and thereby she caught in flames. She made hue and cry which drew the attention of P. W. 6 Janardhan in whose house the accused and the deceased were residing as tenants. P. W. 6 rushed to the portion wherein the accused and the deceased were residing and knocked the door. On opening the door by the accused, p. W. 6 found the deceased with burn injuries on her person. He shifted the deceased by an auto to Gandhi Hospital, Secunderabad. PW. 15 P. Venkatagiri, Sub-Inspector of police, Tirumalgiri Police Station received a telephonic message from Gandhi Hospital, secunderabad about the admission of the deceased with ninety percent burns on her person. He deputed P. W. I Naseeruddin, head Constable, to the Hospital. P. W. I reached the hospital at 2. 15 a. m. on 4. 8. 1999 and found the deceased with burn injuries. He recorded her statement which has been exhibited as Ex. P. l. Basing on Ex. P. l statement, P. W. 15 registered a case in cr. No. 136 of 1999 under Sections 307 IPC, 498a IPC and issued Ex. P. 7 FIR. He inspected the scene of offence in the presence of P. W. 12 and got the scene of offence photographed by P. W. 13. While observing the scene of offence, he effected seizure of Mos. l to 5. Ex. P. 3 is the scene of offence panchanama. P. 4 is the rough sketch of the scene of offence. Ex. P. 6 to 19 are the positive photographs along with the corresponding negatives of the scene of offence. P. W. 9 Goutham Prasad, metropolitan Magistrate, Hyderabad, received a requisition from SHO, Tirumalgiri on 4. 8. 1999 at 6. 20 a. m. to record the Dying declaration of the deceased. Ex. P. 6 is the requisition received by him. Ex. P. 6 to 19 are the positive photographs along with the corresponding negatives of the scene of offence. P. W. 9 Goutham Prasad, metropolitan Magistrate, Hyderabad, received a requisition from SHO, Tirumalgiri on 4. 8. 1999 at 6. 20 a. m. to record the Dying declaration of the deceased. Ex. P. 6 is the requisition received by him. He rushed to the hospital and recorded the statement of the deceased on 4. 8. 1999 at about 6. 20 a. m. Ex. P. 7 is the dying declaration of the deceased recorded by him. P. Ws. 2, 3 and 4, on receipt of information of admission of the deceased in the hospital, reached the hospital and made enquiries with her. The deceased stated to P. W. 2 and 4 that on the night of the incident the accused poured kerosene and set her on fire and thereby she sustained burn injuries. P. 15 arrested the accused on 6. 8. 1999 and sent him for medical examination since he had burn injuries on his person. P. W. 14 Dr. K. Sachin chander medically examined the accused on 6. 8. 1999 at 2 a. m. and found ten per cent mixed burns on his person and accordingly issued Ex. P. l6 wound certificate. The deceased succumbed to her burn injuries while undergoing treatment in the hospital on 8. 8. 1999 at about 4. 15 a. m. On receipt of death intimation, P. W. 15 altered section of law and submitted Ex. P. 18 memo of alteration of section of law before the XI metropolitan Magistrate, Secunderabad. P. W. 10 B. Shantha, Mandal Executive magistrate, conducted inquest on the dead body of the deceased on 8. 8. 1999 at 1. 30 p. m. in the presence of P. W. 8. Ex. P. 5 is the inquest report. After the inquest the dead body was sent for post mortem examination. P. W. 11 Dr. Rajendrakumar conducted post-mortem examination on the dead body of the deceased on 8. 8. 1999 at 3. 30 p. m. and found ante-mortem mixed flame burns all over the body except scalp and soles of both feet. He opined that the deceased died of shock due to burns. Ex. P. 8 is the post-mortem report. P. W. 11 Dr. Rajendrakumar conducted post-mortem examination on the dead body of the deceased on 8. 8. 1999 at 3. 30 p. m. and found ante-mortem mixed flame burns all over the body except scalp and soles of both feet. He opined that the deceased died of shock due to burns. Ex. P. 8 is the post-mortem report. After completing investigation, P. W. 16 g. V. Ramanarao, Assistant Commissioner of Police, Ramgopalpet Sub-Division, laid the charge sheet in the Court of XI M. M. , secunderabad. The learned Magistrate took the charge sheet on file as P. R. C. No. 2 of 2001 and committed the case to the court of Session as the offences under sections 302 and 304b IPC are exclusively triable by the Court of Session. On committal, the learned Metropolitan sessions Judge, Hyderabad took the case, on file as S. C. No. 327 of 2001 and made over the same to VI Additional Metropolitan sessions Judge, Secunderabad for disposal according to law. On hearing the prosecution and the accused, the learned Additional metropolitan Sessions Judge framed charges under Sections 302 and 304 IPC, read over and explained the same to the accused for which the accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offences with which he stood charged, the prosecution examined P. Ws. l to 16 and proved 18 documents and exhibited five material objects. The learned Additional Metropolitan sessions Judge, on appreciation of the evidence brought on record, found the accused/appellant guilty for the offence under section 302 IPC and convicted him accordingly and sentenced him as stated above. However, the learned Additional metropolitan Sessions Judge found the accused/appellant not guilty under Section 304b IPC and acquitted him accordingly. Assailing the judgment of conviction and sentence, the accused has filed this criminal appeal. ( 4 ) LEARNED Senior Counsel appearing for the accused/appellant submits that the case of the prosecution suffers from serious infirmities since the statement of the deceased recorded by P. W. 15 during the course of investigation has not been placed on record. He also submits that exs. P. l and 7 D. Ds. ( 4 ) LEARNED Senior Counsel appearing for the accused/appellant submits that the case of the prosecution suffers from serious infirmities since the statement of the deceased recorded by P. W. 15 during the course of investigation has not been placed on record. He also submits that exs. P. l and 7 D. Ds. of the deceased are at the behest of her mother who has been examined as P. W. 2 and who has hostility with the accused since he happened to be instrumental in the love marriage of P. W. 3 with his brother. It is nextly submitted by him that the version of the deceased in her d. D. is not corroborated by the medical evidence since no part of her scalp is reached burns. What he means to say is that according to the dying declaration of the deceased, the accused poured kerosene from head but she did not sustain any burn injuries on her scalp as per the postmortem report which has been exhibited as ex. P. 8. ( 5 ) PER contra, learned Public prosecutor submits that the dying declarations of the deceased are consistent that it was the accused/appellant who poured kerosene and set fire to her and thereby she sustained burn injuries for which she succumbed while undergoing treatment in the hospital. It is also submitted by him that non-production of the statements of the deceased said to have been recorded by P. W. 15 during the course of investigation in the circumstances of the case is not much material in view of the consistency with regard to the manner and nature of the occurrence in Exs. P. l and P. 7 DDs. It is also submitted by her that non-examination of a child who was then aged three years at the time of the occurrence does not in any way effect adversely the cogent and convincing evidence brought on record. ( 6 ) THE prosecution examined P. Ws. l to 16 to bring home the guilt of the accused for the offences with which he stood charged. P. W. I is the Head Constable who recorded the statement of the deceased at Gandhi hospital, Secunderabad, on 4. 8. 1999 at 4. 35 a. m. , which formed the basis for registering a case in Cr. No. 136 of 1999. P. W. I is the Head Constable who recorded the statement of the deceased at Gandhi hospital, Secunderabad, on 4. 8. 1999 at 4. 35 a. m. , which formed the basis for registering a case in Cr. No. 136 of 1999. P. W. 2 is mother, P. W. 3 is younger sister, P. W. 4 is brother-in-law and P. W. 5 is maternal uncle of the deceased. P. W. 6 is the owner of the house wherein the accused and the deceased resided together as tenants. ( 7 ) P. WS. 7 and 12 are the panch witnesses for the observation of scene of offence. P. W. 8 is the panch witness for the inquest. P. W. 9 is the VIII Metropolitan magistrate, Hyderabad, who recorded the dying declaration of the deceased on 4. 8. 1999 at 6. 20 a. m. , P. W. 10 is the Mandal executive Magistrate who conducted the inquest on the dead body of the deceased on 8. 8. 1999 at 1. 30p. m. P. W. ll is the Assistant professor, Gandhi Medical College, secunderabad who conducted post-mortem examination on the dead body of the deceased and issued Ex. P. 8 post-mortem report opining that the deceased died of shock due to burns. P. W. 13 is the photographer who photographed the scene of offence. P. W. 14 is the Chief Medical officer, Gandhi Medical College, who medically examined the accused on 6. 8. 1999 and found ten per cent mixed burns on the person of the accused and issued Ex. P. 16 wound certificate. P. Ws. l5 and 16 are the investigating Officers. ( 8 ) THE main reliance of the prosecution is on the dying declarations of the deceased. There are two written dying declarations, which have been exhibited as p. I and P. 7. Ex. P. l is the statement of the deceased recorded by P. W. 1, which formed the basis for registering a case in Cr. No. 136 of 1999. Ex. P. 7 is the dying declaration recorded by the Magistrate (P. W. 9 ). Apart from the two written dying declarations, the prosecution pressed into service two oral dying declarations made by the deceased to P. Ws. 2 and 4. P. W. 2 is the mother and P. W. 4 is the son of maternal uncle (P. W. 5) of the deceased. Apart from the two written dying declarations, the prosecution pressed into service two oral dying declarations made by the deceased to P. Ws. 2 and 4. P. W. 2 is the mother and P. W. 4 is the son of maternal uncle (P. W. 5) of the deceased. The fact that the deceased sustained bum injuries in the house wherein the deceased and the accused resided together is not in dispute. It is also not in dispute that the deceased died of burn injuries. The defence of the accused as can be seen from the cross- examination of P. W. 2 is that the family of the deceased has a suicidal tendency and that P. W. 2, the mother of the deceased tutored the deceased to implicate the accused as the person responsible for burns received by her since the accused performed the marriage of her second daughter, who has been examined as p. W. 3, against her wish. It is to be noted that P. W. 3 is the youngest daughter of p. W. 2 and she married the brother of the accused and their marriage would appear to be a love marriage. Nothing is elicited in the cross-examination of P. W. 2 that hostility prevailed between her and the accused on account of the latter being instrumental in performing the marriage of P. W. 3 against her (P. W. 2) wish. The deceased sustained bum injuries on the night of 3. 8. 1999 at about 11. 30 p. m. Within few minutes of her receiving burn injuries, P. W. 6 and the accused shifted her to Gandhi Hospital and her statement came to be recorded by p. W. I at about 4. 35 a. m. , on 4. 8. 1999. When the accused was one of the persons who shifted the deceased to the hospital, the deceased would not give a twisted version of the incident implicating the accused if he was innocent and was not perpetrator of the offence. A serious attempt has been made by the learned Senior Counsel appearing for the accused that by the time p. W. I came to the hospital to record the statement of the deceased, P. W. 2 and P. W. 4 had arrived and therefore they tutored the deceased to speak false against the accused. A serious attempt has been made by the learned Senior Counsel appearing for the accused that by the time p. W. I came to the hospital to record the statement of the deceased, P. W. 2 and P. W. 4 had arrived and therefore they tutored the deceased to speak false against the accused. No doubt P. W. 2 admits of her reaching the hospital by 3 a. m. , and stayed with the deceased for five days i. e. till the deceased succumbed to her bum injuries while undergoing treatment in the hospital. The presence of P. W. 2 at the hospital can in any way diminish the evidentiary value of dying declaration. It is to be noted that the accused was one of the persons who shifted the deceased to the hospital. In these circumstances, had the accused was not the person responsible for the burn injuries received by her, she would not have stated anything against the accused. ( 9 ) THE dying declaration is undoubtedly admissible under Section 32 of indian Evidence Act and not being a statement on oath so that its truth can be decided by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection of the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person, yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The Court must be satisfied that the deceased was in a fit statement of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. When it is said that a conviction can rest on a dying declaration, it is implied that it must inspire confidence so as to make it safe to act upon it. The law relating to reliability ot dying declaration is well settled by catena of judgments of supreme Court. When it is said that a conviction can rest on a dying declaration, it is implied that it must inspire confidence so as to make it safe to act upon it. The law relating to reliability ot dying declaration is well settled by catena of judgments of supreme Court. In Kushal Rao v. State of bombay, AIR 1958 SC 22 , the Supreme court on a review of the provisions of Indian evidence Act and decided cases held as follows:"on a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it can not be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. "it was observed that in order to pass the test of reliability the dying declaration has to be subjected to a very close scrutiny keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by a cross-examination. In tapinder Singh v. State of Punjab, AIR 1970 SC 1566 , the Supreme Court by following earlier decision in Kushal Rao v. State of Bombay (supra) has reminded the courts that a dying declaration should be subjected to very close scrutiny, the following observations were also made :"it is true that a dying declaration is not a deposition in Court and it is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross-examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity. The weak points of a dying declaration just mentioned merely serve to put the Court on its guard while testing its reliability, by imposing on it an obligation to closely scrutinize all the relevant attendant circumstances. " ( 10 ) A dying declaration if found to be true and free from embellishment can be sufficient for recording conviction is now well settled. In Kandula Bala Subrahmanyam v. State of A. P. , (1993) 2 SCC 684 , while dealing with the evidentiary value of a dying declaration, this Court opined:"section 32 (1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not creditworthy. Under Section 32, when a statement is made by a person as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of the person s death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes of circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. " ( 11 ) IT is in the light of the settled principles that we shall examine whether the dying declaration bare a close scrutiny of this Court and process the test of being trustworthy and reliable. The earliest dying declaration of the deceased came to be recorded by P. W. I on 4. 8. 1999 at 4. 35 a. m. , it can be said without any controversy that her dying declaration came to be recorded within few hours of the incident. In all fairness it could be said that her statement before P. W. 1 is an unpolluted one. Ex. P. l is the statement of the deceased recorded by P. W. 1 and it is the basis for registering a case in Cr. No. 136 of 1999. The deceased stated in Ex. P. 1 dying declaration that it was the accused who poured kerosene and lit fire and thereby she caught in flames. ( 12 ) LEARNED Senior Counsel appearing for the accused/appellant tried to convince the court that the version of the incident spoken by the deceased in Ex. P. 1 dying declaration does not tally with the medical evidence. What he means to say is that according to Ex. ( 12 ) LEARNED Senior Counsel appearing for the accused/appellant tried to convince the court that the version of the incident spoken by the deceased in Ex. P. 1 dying declaration does not tally with the medical evidence. What he means to say is that according to Ex. P. l dying declaration the accused poured kerosene from head and set fire, but the post-mortem report does not indicate of the deceased sustaining any bum injuries on her scalp. The submission of the learned Senior Counsel appears "to be impressive at the first blush but on close scrutiny of the dying declaration i. e. , Ex. P. l, his submission does not hold water. It is stated by the deceased in the dying declaration i. e. , Ex. P. l that the accused poured kerosene on her from head and throw a lighted match stick. For better appreciation we may refer the relevant portion of the dying declaration in her own words and it is thus : It is explicit from the above-referred portion of the dying declaration that the accused threw the lighted matchstick on the deceased and thereby the deceased caught fire. Had the lighted matchstick fell on the head of the deceased, burn injuries would have been noticed on the scalp. The very fact that she did not sustain burn injuries on her scalp suggests that the lighted matchstick did not strike on her head. In these circumstances the absence of injuries on her scalp cannot be a ground to doubt the version of the incident spoken by the deceased in her dying declaration. ( 13 ) THE second dying declaration of the deceased came to be recorded by the magistrate on. 4. 8. 1999 at about 6. 20 a. m. , p. W. 9 is the Magistrate who recorded the dying declaration which has been exhibited as Ex. P. 7. The version of the incident spoken by her in Ex. P. l and Ex. P. 7 is cogent and consistent. P. W. 2 and P. W. 4 are the witnesses to speak of the oral dying declarations of the deceased. The oral dying declaration of the deceased are consistent with the written dying declarations, one recorded by P. W. I and the other recorded by P. W. 7. P. l and Ex. P. 7 is cogent and consistent. P. W. 2 and P. W. 4 are the witnesses to speak of the oral dying declarations of the deceased. The oral dying declaration of the deceased are consistent with the written dying declarations, one recorded by P. W. I and the other recorded by P. W. 7. ( 14 ) LEARNED Senior Counsel appearing for the accused/appellant submits that the prosecution suppressed the statement of the deceased recorded by P. W. 15 during the course of investigation and therefore it is fatal to the prosecution. It is nodoubt p. W. 15 states in his chief examination that he visited Gandhi Hospital during the course of investigation and recorded the statement of the deceased. Nothing is suggested to p. W. 15 in the cross-examination that the statement of the deceased recorded by him has been suppressed and that it caused prejudice to the accused. There are two dying declarations which came to be recorded by P. W. 1 and P. W. 7 prior to p. W. 15 took up the investigation. Both the written dying declarations are consistent that it was the appellant/accused who set the deceased on fire. In these circumstances, non-production of the statement of the deceased said to be recorded by P. W. 15, more particularly when no prejudice has been pleaded by the accused, does not in any way dwindle the evidentiary value of Ex. P. 1 and Ex. P. 7 dying declarations. ( 15 ) THE evidence brought on record clearly established that it was the appellant/ accused who poured kerosene on the deceased and threw a lighted match stick on her and thereby she sustained burn injuries for which she succumbed while undergoing treatment in the hospital. The trial Court appreciated the evidence brought on record in right perspective and found the accused/appellant guilty for the offence under section 302 IPC. We see no ground to interfere with the impugned judgment of the trial Court. ( 16 ) IN the result, this Criminal Appeal fails and the same is dismissed confirming the judgment dated 21-3-2002 passed in S. C. No. 327 of 2001 on the file of Special Judge for trial of offences under SCs and STs (Prevention of Atrocities) Act-cum-VI additional Metropolitan Sessions Judge, secunderabad.