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2008 DIGILAW 1095 (AP)

Naseem Khan s/o Mohinuddin Khan v. State of A. P.

2008-12-23

K.C.BHANU, V.ESWARAIAH

body2008
JUDGMENT: (per the HON'BLE SRI JUSTICE V.ESWARAIAH) The appellant-sole accused filed this appeal against the judgment, dated 31-03-2006, in Sessions Case No.355 of 2003, on the file of the II Additional Sessions Judge, Karimnagar at Jagtial, in convicting and sentencing him to undergo Imprisonment for life of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for brevity 'IPC'). 2. The case of the prosecution, in brief, is as follows: P.W.1 is the father and P.W.4 is the sister of Afsari (hereinafter referred to as 'the deceased'). P.W.2 is the brother of P.W.1. The deceased wanted to marry the accused, who was already married and having two or three children. P.W.1 did not accept the proposal of the deceased and banged her. The deceased left the house and started living in the house of P.W.4. After some time, the accused took her stating that both of them would live at Metpalli. P.W.5 is the owner of the house at Metpalli in whose house both of them lived on rent. P.W.3 is the neighbour of the said house. A day after they joined in the new house, at about 1 or 2 PM, both the accused and the deceased came out of the house with flames and the accused ran away. The deceased informed P.W.3 that the accused poured kerosene and caused burn injuries. P.W.3 extinguished the flames and later his mother and others shifted the injured to Government hospital at Metpalli. The admission of the deceased in the hospital was informed to P.W.1 and also to P.W.9-Sub Inspector of Police. P.W.9 sent Ex.P5-requisition to P.W.11-Judicial First Class Magistrate, Metapalli, for recording dying declaration. P.W.9 proceeded to the hospital and recorded the statement of the deceased under Ex.P6 and basing on which, he registered a case in Cr.No.99 of 2001 under Section 307 IPC and issued Ex.P7-First Information Report (FIR). P.Ws. 1,2 and 4 proceeded to the hospital and when enquired, the deceased informed them how the incident took place. On 06-09-2001 at 3.55 PM, P.W.11 received requisition for recording dying declaration. He proceeded to the hospital by 4 PM. After satisfying himself, he recorded the dying declaration of the deceased under Ex.P9. On the same day at 9 P.M., the deceased died. Therefore, the Section of law was altered from 307 IPC to 302 IPC. P.W.10-Inspector of Police took up further investigation. He proceeded to the hospital by 4 PM. After satisfying himself, he recorded the dying declaration of the deceased under Ex.P9. On the same day at 9 P.M., the deceased died. Therefore, the Section of law was altered from 307 IPC to 302 IPC. P.W.10-Inspector of Police took up further investigation. On 07-09-2001, P.W.12- Mandal Revenue Officer, Metpalli, conducted inquest over the dead body of the deceased in the presence of P.W.7 under Ex.P7-inquest panchanama. Thereafter, the body was sent to post-mortem examination. P.W.8-Civil Assistant Surgeon, Government hospital, Metpalli, conducted autopsy over the dead body of the deceased and issued Ex.P4-postmortem certificate. On 29-09-2001, P.W.10 arrested the accused and after completion of investigation, he filed the charge sheet. 3. The learned Sessions Judge, framed the following charge against the accused: "That you on 06-09-2001, at about 14.00 hours, at Chaithnyanagar, Metpalli, committed murder by intentionally causing the death of your wife, namely, Afsari, by pouring kerosene on her body and setting her ablaze due to family disputes and dislike on her and that thereby committed an offence punishable under Section 302 IPC" When the above charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charge, the prosecution examined P.Ws.1 to 13 and got marked Exs.P-1 to P-11 besides case property, M.Os.1 to 7. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating material found against him in the evidence of prosecution witnesses. He denied the same. No evidence, either oral or documentary was adduced on behalf of the accused. 6. The learned Sessions Judge believing the dying declarations made by the deceased, held that the acts of the accused in pouring kerosene on the deceased and putting on fire without any provocation from her, would go to show that he had intention to kill her and as such, he is liable for punishment under Section 302 IPC. Accordingly, the accused was convicted and sentenced as above. Aggrieved thereby, the accused preferred this appeal. 7. Learned counsel appearing for the appellant-accused contended that the evidence of P.Ws. 2,3,4,9 and 11 is highly interested and discrepant, that the marriage between the deceased and the accused was not established, that the deceased was tutored by P.Ws. Accordingly, the accused was convicted and sentenced as above. Aggrieved thereby, the accused preferred this appeal. 7. Learned counsel appearing for the appellant-accused contended that the evidence of P.Ws. 2,3,4,9 and 11 is highly interested and discrepant, that the marriage between the deceased and the accused was not established, that the deceased was tutored by P.Ws. 1,2 and 4 to give dying declarations, that according to P.W.1, the accused developed fascination towards the deceased and both of them left their house at Korutla and shifted to Metpalli and when such is the position, question of accused killing the deceased does not arise, that P.W.3, who is the neighbour of the deceased did not support in her earlier statement about the oral dying declaration made by the deceased, that there is no intention on the part of the accused to kill the deceased and there was no enmity between the accused and the deceased, that the deceased left the house of her parents and staying at the house of P.W.4, who is no other than the sister of the deceased, that they stayed only one day in a rented house of P.W.5 at Metpalli, that as per the evidence of P.Ws. 1,2, and 4 the love affair of the deceased with the accused was not liked by them and in fact they chastised the deceased for her proposal to marry the accused and the brother of the deceased driven her out of the house, that there are probabilities which would go to show that the deceased committed suicide and it is not a case homicidal death and hence, he prays to set aside the conviction and sentence recorded against the appellant-accused. 8. On the other hand, counsel representing the learned Public Prosecutor contended that the dying declarations made by the deceased to P.W.9-Sub Inspector of Police, Metpalli and P.W.11-Judicial Magistrate of I Class, Metpalli and the oral dying declaration to her parents are consistent and uniform, that there are no discrepancies with regard to the consistent statement of the deceased with regard to pouring of kerosene and setting her ablaze by the accused and hence, absolutely, there are no grounds to interfere with the conviction and sentence recorded against the appellant- accused. 9. 9. Now, the point that arises for consideration, in this Criminal Appeal, is whether the prosecution has proved its case, against the appellant-accused, of the offence punishable under Section 302 IPC, beyond all reasonable doubt? 10. P.W.1 is the father of the deceased. He deposed that the deceased wanted to marry the accused, who was already married and having 2 or 3 children. They did not accept for the proposal of the deceased for her marriage with the accused and therefore, the deceased left their house and started living in the house of her elder sister (P.W.4). After some time, the accused took the deceased to Metpalli promising to marry her and 13 days later, they came to know that the deceased received burn injuries caused by the accused. On receiving information, they went to the hospital at Metpalli and found the deceased with burn injuries. On enquiry, the deceased stated that the accused burnt her. He further stated that the deceased was never driven out of the house and they only chastised the deceased for her proposal to marry the accused since the accused had already wife and children. 11. P.W.2 is the younger brother of P.W.1. He deposed that after receiving burn injuries by the deceased, he along with P.W.1 and other family members went to Metpalli hospital, where the deceased was being treated. On enquiry, the deceased stated that the accused took her to Metpalli few days before the incident with a promise to marry her and again after living with her for some time, he required her to go away and when she resisted, the accused had sprinkled the kerosene on her and put her on fire. 12. P.W.3 is a neighbour of the house where the deceased and the accused were living in a rented house at Metpalli. She stated that at about 1 or 2 P.M. both the accused and the deceased came out of their house with flames on their body and the accused ran away. The deceased informed her that the accused caused burn injuries by dousing her kerosene and putting her on flames. She put clothes on the deceased and extinguished flames on her body. Her mother, one Narsamma and one Sayanna shifted the injured to the Government Hospital. The deceased informed her that the accused caused burn injuries by dousing her kerosene and putting her on flames. She put clothes on the deceased and extinguished flames on her body. Her mother, one Narsamma and one Sayanna shifted the injured to the Government Hospital. In the cross- examination, she stated that as per her 161 Cr.P.C. statement, the deceased informed her in the hospital that her husband (accused) poured kerosene and set fire to her. She further stated that she did not state in her 161 Cr.P.C. statement that the deceased stated so and immediately she came out from the house. She stayed in the hospital for a while and later came back. She did not know the family affairs of the deceased and the accused. 13. P.W.4 is the sister of the deceased. She stated that she was residing in a different house at Korutla from that of the house of her parents. She further stated that love affair of the deceased with the accused was resisted by her father and when the deceased was insisting to marry the accused, P.W.1 did not accept her proposal and sent her from the house and as a result, the deceased came and joined her and was living in her house. The accused developed intimacy with the deceased and married the deceased when she was in the house without informing her. The accused took the deceased stating that both of them would live at Metpalli. On the next day, she received message that the deceased received burn injuries and was admitted in the Government Hospital, Metpalli. She along with P.W.2 went to the hospital and on enquiry, the deceased informed them that the accused poured kerosene on her body and put her on fire. 14. P.W.5 is the owner of the house, where the deceased and the accused was living in a rented house at Metpalli. He stated that he is living in a separate house from that of the house of the accused. In the cross-examination, he stated that the accused and the deceased taken his house on rent. 15. P.W.6 is the punch witness for recovery of M.Os. 1 to 7, which are burnt shirt and shalwar of a lady, ground sheet which is burnt, burnt bed sheet, burnt plastic, plastic can, pair of lady chappal and male chappal and Ex.P1 is the crime detailed form. 16. 15. P.W.6 is the punch witness for recovery of M.Os. 1 to 7, which are burnt shirt and shalwar of a lady, ground sheet which is burnt, burnt bed sheet, burnt plastic, plastic can, pair of lady chappal and male chappal and Ex.P1 is the crime detailed form. 16. P.W.7 is the punch witness for the inquest report and P.W.8 is the Civil Assistant Surgeon, who conducted postmortem examination over the dead body of the deceased and issued Ex.P4-postmortem certificate. 17. P.W.9, who is the Sub Inspector of Police, Metpalli, deposed that on receipt of information from the hospital, he went to the hospital at about 3.00 PM and recorded the statement of the deceased under Section 154 Cr.P.C. under Ex.P6. Basing on it, he registered a case in Cr.No.99 of 2001 under Section 307 IPC and issued FIR. On the same day at about 5 PM, he conducted panchanama of scene of incident in the presence of P.W.6 and another and seized M.Os. 1 to 7 and prepared Ex.P2-rough sketch of scene of offence. On receipt of intimation about the death of the deceased at about 9 PM, he altered section of law from 307 IPC to 302 IPC. Further investigation was taken up by the Inspector of Police. 18. P.W.10 is the Inspector of Police, who took up investigation, visited the hospital at 10 PM and made requisition to the Mandal Revenue Officer to conduct inquest over the dead body of the deceased. He also examined P.Ws. 1,2, 4, 5 and others and recorded their statements. 19. P.W.11 is the Judicial Magistrate of I Class, Metpalli, who recorded the dying declaration of the deceased on receiving requisition under Ex.P5 and the dying declaration recorded by him is Ex.P9. 20. P.W.12 is the Mandal Revenue Officer, Metpalli, who conducted inquest over the dead body of the deceased. 21. P.W.13 is the Civil Assistant Surgeon, who sent requisition to P.W.11-Judicial Magistrate of I Class, Metpalli, to record the dying declaration of the deceased and also certified that the patient was conscious and coherent to give dying declaration. Ex.P11 is the endorsement on the dying declaration made by him. 22. In the instant case, the aforesaid evidence available on record would go to show that the deceased developed love with the accused. But, her parents and her brother did not like her proposal to marry the accused. Ex.P11 is the endorsement on the dying declaration made by him. 22. In the instant case, the aforesaid evidence available on record would go to show that the deceased developed love with the accused. But, her parents and her brother did not like her proposal to marry the accused. Thereafter, she left the house of her parents and living in the house of her sister (P.W.4) in the same village at Korutla. After some days, the accused took the deceased to another village i.e., Metpalli and taken the house of P.W.5 on rent. As per the statement of P.W.3, who is no other than the neighbour, the accused and the deceased came out of the house with flames and the accused ran away from the scene of offence. The mother of P.W.3 and others admitted the deceased in the hospital. P.W.3 also visited the hospital and on enquiry, the deceased informed her that the accused poured kerosene on her and set fire to her. P.W.9-Sub Inspector of Police recorded her statement and also made a requisition for recording the dying declaration by P.W.11-Judicial Magistrate of I Class, Metpalli. P.W.11 recorded the dying declaration after following the required precautions and procedure and satisfying that the deceased was in a fit state of mind, conscious and coherent in giving the statement. In the dying declaration, it is stated that the accused poured kerosene on her and set fire to her. 23. Learned counsel appearing for the appellant- accused submits that there was no intention or ill will to cause the death of the deceased and therefore, it cannot be said that the death of the deceased is homicidal in nature. But, we are unable to accept the said contention in view of the fact that the dying declaration is consistent and uniform. When a statement is made by a person as to the cause of the death explaining the circumstances of the transaction, which resulted in his death, in case in which the cause of that person's death comes into question, is relevant under Section 32 (1) of the Indian Evidence Act, 1872. Further, if the dying declaration is found to be true and trustworthy and not an outcome of tutoring or prompting by any of the relatives of the deceased, then it can be acted upon even without corroboration, to base a conviction. Further, if the dying declaration is found to be true and trustworthy and not an outcome of tutoring or prompting by any of the relatives of the deceased, then it can be acted upon even without corroboration, to base a conviction. The dying declarations made by the deceased are natural. As the dying declarations are consistent and without any discrepancy, we believe that the said dying declarations are trust worthy and reliable. Therefore, we are of the opinion that the learned Sessions Judge after appreciation of evidence on record, rightly found the accused guilty of the offence punishable under Section 302 IPC and absolutely, there are no grounds to interfere with the conviction and sentence recorded against the appellant- accused. 24. Accordingly, the Criminal Appeal is dismissed confirming the judgment, dated 31-03-2006, in Sessions Case No.355 of 2003, on the file of the II Additional Sessions Judge, Karimnagar at Jagtial.