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2011 DIGILAW 450 (AP)

Andugula Shankaraiah v. State of Andhra Pradesh

2011-06-20

A.GOPAL REDDY, RAJA ELANGO

body2011
Judgment RAJA ELANGO, J :- This criminal appeal under Section 374(2) of the Code of Criminal Procedure (for short 'Cr.PC') is filed by the appellant-accused questioning the judgment of conviction passed in Sessions Case No.47 of 2007 by the Principal Sessions Judge, Nalgonda, on 25.7.2007 wherein the appellant was convicted under Section 235(2) Cr.PC and sentenced to undergo imprisonment for life and also to pay fine of Rs.2,000/-, in default to suffer simple imprisonment for six months, for the offence punishable under Section 302 of Indian Penal Code (for short 'IPC'). 2. The case of the prosecution, in brief, is that about four years prior to the 31 incident in the present case, the marriage of the deceased was performed with the appellant. At that time, net cash of Rs.20,000, gold and silver ornaments and household articles worth Rs 40,000/- were given towards dowry. Thereafter, the couple led happy marital life for six months and thereafter accused started harassing the deceased to bring additional dowry. Even after taking Rs.10,000/- towards additional dowry from the parents of the deceased for house construction accused continued his harassment on the deceased. On 24.9.2006 when the mother and brother of the deceased questioned the accused about his harassment, accused picked up quarrel with them and manhandled the deceased. On seeing the same, the mother and brother of the deceased left the place and took shelter in the house of one Rama Chandram. While so, on the same day at about 2100 hours accused again picked up a quarrel with the deceased, poured kerosene on her and lit fire. On hearing the cries of the deceased, her mother, brother and other neighbours went there, put off fire and shifted her to Government Quarters Hospital, Nalgonda. On 27.9.2006 while undergoing treatment the deceased succumbed to bum injuries. In the meanwhile, the dying declaration of the deceased was recorded by the Judicial First Class Magistrate, Nalgonda. Basing on the complaint lodged by the mother of the deceased on 26.9.2006, police registered a case in Crime No.82 of 2006. 3. The investigation agency after completion of entire investigation and receiving necessary certificates filed charge against the sole accused, which was numbered as PRC No.91 of 2006 by the Judicial Magistrate of First Class, Nalgonda. 4. Basing on the complaint lodged by the mother of the deceased on 26.9.2006, police registered a case in Crime No.82 of 2006. 3. The investigation agency after completion of entire investigation and receiving necessary certificates filed charge against the sole accused, which was numbered as PRC No.91 of 2006 by the Judicial Magistrate of First Class, Nalgonda. 4. On committal, the learned Sessions Judge examined the accused under Section 228 of the Code of Criminal Procedure and framed charge under Sections 498A and 302 IPC, in which, the accused denied the charges and claimed for trial. 5. In order to prove the guilt of the accused, prosecution examined PW s.1 to 10 and marked Exs.P1 to P 11. After closure of prosecution evidence, accused was examined under Section 313 Cr.PC in which he denied the incriminating evidence put to him available in the evidence of prosecution witnesses. Accused did not choose to adduce any oral and documentary evidence on his behalf. After hearing the arguments on both sides and on appreciation of entire evidence, the learned Session Judge acquitted the accused for the offence punishable under Section 498A IPC and convicted him for the offence punishable under Section 302 IPC by impugned judgment. 6. Heard the learned Counsel for the appellant and the learned Public Prosecutor for the State. 7. PWs.1 to 3 are the mother, brother and father of the deceased respectively. All these three witnesses turned hostile deposing that the deceased poured kerosene on herself and burnt herself Statements of these witnesses under Section 161 Cr.PC are marked as Exs.P2 to P4 respectively. Thumb impression of PW 1 on complaint is marked as Ex.P1. 8. PW4 is the panch witness for scene of offence and recovery panchanama. PW5 is the panch witness for inquest panchanama and he turned hostile deposing that at the instance of police he signed on inquest panchanama. 9. PW6 is the then Judicial Magistrate of First Class, Nalgonda, who recorded the dying declaration of the deceased under EX.P6. PW7 is the then Mandal Revenue Officer, Munugode Mandal, Nalgonda District, who conducted inquest over the dead body of the deceased vide EX.P7. 9. PW6 is the then Judicial Magistrate of First Class, Nalgonda, who recorded the dying declaration of the deceased under EX.P6. PW7 is the then Mandal Revenue Officer, Munugode Mandal, Nalgonda District, who conducted inquest over the dead body of the deceased vide EX.P7. PW8 is the Civil Assistant Surgeon, who held autopsy over the dead body of the deceased and issued EX.P8 Post-Mortem Examination Report opining that the cause of death of the deceased is due to bums and the deceased died 6 to 12 hours prior to his post-mortem examination. 10. PW9 is the Head Constable who registered the crime, recorded statement of PW1, visited Government Hospital, Nalgonda, recorded the statements of PWs2 and 3, visited scene of offence, conduced scene of offence panchanama, drawn sketch of scene of offence before mediators. During his examination Exs.P9 to P11 FIR, scene of offence panchanama, rough sketch respectively were marked. 11. PW10 is the Circle Inspector of Police, Chandur Circle, who conducted further investigation in the matter, arrested the accused on 10.10.2006, produced him before the Magistrate and on completion of investigation filed charge-sheet. 12. After evaluating the above evidence, the learned Sessions Judge convicted the appellant mainly relying on Ex.P6, dying declaration recorded by the learned Magistrate PW6. 13. Learned Counsel for the appellant raised the following two contentions in support of his case: (1) In the absence of any other corroborative evidence, the dying declaration cannot be acted upon, and (2) the incriminating circumstance mentioned in the dying declarationEx.P6 was not put to the accused when examined under Section 313 Cr. PC, which caused prejudice to the accused. Thus, the conviction imposed on the appellant is not sustainable. 14. For proper appreciation of the case, the relevant portion of Ex.P6-dying declaration (as per translated copy) is extracted hereby: (1) How you received burnings? Ans : I have been married since 6 years. After the marriage my husband was behaved well for a year. Later he started beating me. I do not know what is in his mind. He used to beat me severely. He used to beat me like a buffalo. Today 24.9.2006 night he bring kerosene tin which was kept in house, poured on me, lit me and fled away. At that time we two persons were in the house. Myself and my husband living by doing labour work. He used to beat me severely. He used to beat me like a buffalo. Today 24.9.2006 night he bring kerosene tin which was kept in house, poured on me, lit me and fled away. At that time we two persons were in the house. Myself and my husband living by doing labour work. My husband beats me at the instance of my mother-in-law Latchamma. My parents belong to Kondapuram Village of Chandur MandaI. (2) Place of accident/incident, date and time? Ans : In our house in the night at about 9'0 clock. (3) Name of the person injured or burnt you? Ans: My husband Shankar (4) Whether above injuries/burnings are accidental or intentional to harm you? Ans : I don't know why he poured kerosene on me. In the said dying declaration, the deceased informed about time, the manner in which she was subjected to burn injuries and the person by whom she sustained injuries. The said dying declaration is considered as sole ground by the learned Sessions Judge in convicting the accused. 15. It is well settled that 'the Court can act upon the dying declaration on the basis of the facts and circumstances of each and every case. There is no straightjacket formula to be adopted when the dying declaration inspires the confidence of the Court and does not suffer with any infirmities or which creates any doubt, the manner in which it is recorded and also the declarant person not tutored by anyone'. 16. In the present case, the said. lying declaration has to be appreciated in the light of the evidence adduced by the other witnesses. PW1 is none other than the mother of the deceased. The said witness was treated as hostile since she has not supported the prosecution case and also denied the execution of Ex.P1-complaint. Further, she informed the Court that the accused was not present at the time of death of the deceased, and also informed that her daughter was alone in her house. She further informed the Court that they advised the deceased not to tell the police that she committed suicide. PW1 further stated that "by the time the Magistrate came the relatives were present near the deceased". 17. PW2 who is the brother of the deceased also turned hostile and not supported the prosecution case. PW3, the father of the deceased, informed the Court that his daughter committed suicide. PW1 further stated that "by the time the Magistrate came the relatives were present near the deceased". 17. PW2 who is the brother of the deceased also turned hostile and not supported the prosecution case. PW3, the father of the deceased, informed the Court that his daughter committed suicide. He further stated that the deceased has not complained anything against the accused. In cross-examination also he deposed that "the deceased told me that she got herself burnt ". PWs4 and 5 also not supported the prosecution case. 18. PW6, the Magistrate who recorded the dying declaration of the deceased, stated the manner in which he recorded the same. In the light of the above evidence adduced, this Court is of the view that the said dying declaration alone cannot be found basis for convicting the accused, more particularly, for an offence punishable under Section 302 IPC, which is punishable either with death or life imprisonment and it is highly unsafe to convict the accused only on the basis of the dying declaration. 19. As far as the second contention of the learned Counsel for the appellant is concerned, a close scrutiny of Section 313 Cr. PC is necessary. Section 313 Cr. PC runs as follows: " 313. Power to examine the accused. ---(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court- (a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary, (b) shall, after the witnesses for the prosecution have been "examined and before he is called on for his defence, question him generally on the case. In the said provision the words 'enabling the accused personally to explain any circumstances appearing in the evidence against him' clearly indicate that opportunity should be given to the accused to explain regarding the incriminating circumstances appearing against him. 20. In the said provision the words 'enabling the accused personally to explain any circumstances appearing in the evidence against him' clearly indicate that opportunity should be given to the accused to explain regarding the incriminating circumstances appearing against him. 20. Learned Counsel for the appellant relied on the judgment of the Apex Court in Ajay Singh v. State of Maharashtra, 2007 (2) ALD (Crl.) 449 (SC) = (2007) 12 SCC 341 , wherein it was held that : "E. Penal Code, 1860 - Section 302 - Bride burning - Trial Court finding appellant accused guilty on grounds that accused made extra-judicial confession before PWs and that kerosene was found on accused's dress which he was wearing at the time of the occurrence - High Court concurred with the conclusion - But Supreme Court found that it would be unsafe to place reliance on the so-called extra-judicial confession - No question in that regard to the finding of kerosene on accused's dress was put to accused in examination under Section 313 Cr.PC - Held on facts, prosecution failed to establish charge under Section 302 against accused. " Learned Counsel also relied on Shaik Maqsood v. State of Maharahtra, 2009 (2) ALD (Crt.) 397 (SC) = (2009) 6 SCC 583 wherein with reference to Sections 313 and 315 Cr. PC it was held that: "...... B. The object of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. 14. The word 'generally' in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. 15. The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed: '30. ..... it is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material circumstance which is intended to be used against him. .... The questioning must, therefore, be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is not facing a charge of murder. ... Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. ' 21. The learned Sessions Judge on the basis of evidence given by PW6 put the following question during the examination of the accused under Section 313 Cr.PC : Q.2 : PW6 (G. Raja Gopal), J.F.C.M., Nalgonda, deposed in his evidence that on 24.9.2006 at about 11.30 p.m. he received requisition from the Government Hospital, Nalgonda, through Home Guard 260 of Nalgonda P.S. to record the dying declaration of your wife. He identified the patient with the assistance of Duty Doctor Sri D. Yadaiah, Civil Asst. He identified the patient with the assistance of Duty Doctor Sri D. Yadaiah, Civil Asst. Surgeon to ascertain the condition of the patient, he put preliminary questions to the patient, and after having satisfied with the answers given by her, he obtained the signature of the Duty Doctor. He recorded the dying declaration of your wife; EX.P6 is the dying declaration of your wife. The recording of dying declaration was completed at 00.15 hours i.e., on the intervening night of 24/25.9.2006. The contents of the statement were read over to your wife, and she admitted the contents to be true and correct. What do you say? 22. As discussed earlier, the dying declaration contains the time of occurrence, the manner in which the deceased was subjected to bum injuries and the person by whom she sustained injuries, whereas the question put by the learned Sessions Judge does not disclose the incriminating circumstances against the appellant-accused, which clearly indicates that the Trial Judge miserably failed in his duty. It is unfortunate to note that the learned Sessions Judge has failed to put the most incriminating circumstance available in Ex.P6-dying declaration recorded by PW6, which is the basis for convicting the appellant. 23. Further, while recording EX.P6 dying declaration by the Magistrate, the deceased stated that her brother-in-law (elder brother of her husband) by name Sailu brought her in an auto to the hospital. But, the said person was not examined by the prosecution and he was not even cited as a witness. 24. Further, in the present case, the prosecution case is commission of murder by the appellant whereas as per the evidence adduced by the witnesses, the deceased committed suicide. If an opportunity was given to the appellant, he would have explained the Court regarding the said incriminating statement given by the deceased to the Magistrate. 25. It is pertinent to mention here that in a case of dying declaration, the opportunity of cross-examination of the declarant will not be available to the accused. Hence, it is necessary for the Trial Judge to put the incriminating material in a perfect manner to the accused so as to give an opportunity to him to explain his case. 25. It is pertinent to mention here that in a case of dying declaration, the opportunity of cross-examination of the declarant will not be available to the accused. Hence, it is necessary for the Trial Judge to put the incriminating material in a perfect manner to the accused so as to give an opportunity to him to explain his case. It is also to be noted that the Legislature taking into consideration the importance of provision under Section 313 Cr.PC amended the same by incorporating a new provision, which runs as follows: "313(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section". In view of the above discussion, we are of the view that it is unsafe to convict the accused basing solely on the dying declaration. Hence, the same is liable to be set aside. 26. In the result, the criminal appeal is allowed. The conviction and sentence imposed on the appellant-accused by the learned Principal Sessions Judge, Nalgonda, in Sessions Case No.47 of 2007 on 25.7.2007 for the offence punishable under Section 302 of Indian Penal Code are hereby set aside and he is acquitted for the said offence. Appellant-accused be set at liberty forthwith, if he is not required in any other case. The fine amount paid by the appellant, if any, shall be returned to him.