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2023 DIGILAW 342 (AP)

Mangala Ravi, Spsr Nellore Dist. v. P. P. , Hyd

2023-02-08

C.PRAVEEN KUMAR, VENKATA JYOTHIRMAI PRATAPA

body2023
JUDGMENT: C.Praveen Kumar, J. 1. Heard Sri. M. Ravindra, learned Counsel appearing for the Appellant/Accused and Sri. S. Dushyanth Reddy, learned Additional Public Prosecutor, appearing for the State. 2. The Sole Accused in Sessions Case No. 94 of 2012 on the file of Principal Sessions Judge, Nellore, is the Appellant herein. He was tried for an offence punishable under Section 302 of Indian Penal Code [‘I.P.C.’] for causing the death of his wife, by name, Mangala Thirupathamma [‘Deceased’] by pouring kerosene and setting her on fire. 3. The facts, in issue, are as under: i) PW1 is the father of the deceased. PW2, PW3, PW4, PW5 and PW6 are residents of Tabetivaripalem Village, who are known to the Accused and the deceased. The marriage between the Accused and deceased took place about 15 years prior to the incident and they were blessed with a daughter aged about 20 year and a son aged about 16 years. ii) While things stood thus, on 07.09.2010 at about 11.50 P.M., one Mangala Thirupathamma was brought in 108 ambulance by PW12, one Mangala Venkataramanaiah, who are the sister-in-law and her husband. The doctor [PW10] found her conscious and coherent, but, however, noticed burn injuries on face, chest, abdomen, both hands and legs. There were about 80% burn injuries on the body. Immediately, thereafter, he sent intimation to the Magistrate for recording the dying declaration. Ex.P12 is the said intimation. iii) On receipt of the said intimation, PW15 who was working as Additional Judicial Magistrate of First Class, Kavali, proceeded to the said hospital and after being satisfied with regard to mental condition of the injured, recorded the statement of the injured. Ex.P21 is the dying declaration recorded by PW15. iv) PW11 – Head Constable, I Town Police Station, also received intimation at 12.00 noon and basing on the said requisition, he proceeded to the hospital and recorded the statement of the injured. But, it appears that, he recorded the statement after the statement of the injured was recorded by PW15. Ex.P16 is the statement of the injured recorded by PW11 – Head Constable. v) At about 5.00 p.m., PW1 went to the Police Station and informed PW16 – Sub-Inspector of Police, Jaladanki Police Station, about the death of the deceased. He recorded the statement of PW1, which is marked as Ex.P22. Ex.P16 is the statement of the injured recorded by PW11 – Head Constable. v) At about 5.00 p.m., PW1 went to the Police Station and informed PW16 – Sub-Inspector of Police, Jaladanki Police Station, about the death of the deceased. He recorded the statement of PW1, which is marked as Ex.P22. Basing on Ex.P22 and Ex.P16 [statement of injured], PW16 registered a case in Crime No. 67 of 2010 for the offence punishable under Section 302 I.P.C. Ex.P23 is the First Information Report. Further investigation, in this case, was handed to PW17, who on receipt of copy of Ex.P23 – F.I.R., proceeded to the hospital, examined PW1 and recorded his statement. vi) PW17 – Inspector of Police, who on receipt of Ex.P23 [F.I.R.], reached the Police Station, examined PW1 and recorded his statement. Then, he visited the scene of offence and in the presence of PW3 and PW4 examined the scene of offence, which is a residential house of the deceased. At the scene, he conducted scene observation proceedings in the presence of mediators. At the scene, he seized a plastic bottle emanating smell of kerosene, partly burnt plastic gunny bag pieces, match box, lighted match sticks, and partly burnt saree. The same were seized under Ex.P24. The articles seized were marked as M.O.1 to M.O.6. PW17 also got prepared a rough sketch of the scene, which is placed on record as Ex.P25. Thereafter, on 08.09.2010, he conducted inquest over the body of the deceased in the presence of PW3 to PW5 at D.S.S.R. Headquarters Hospital, Nellore. During the course of inquest, he examined PW6, PW7, PW8 and PW9 and recorded their statements. Ex.P26 is the inquest report. After conducting inquest, the body was sent for post-mortem examination. vii) PW14 – Deputy Civil Surgeon, D.S.R. Head Quarters Hospital, conducted autopsy over the dead body and issued Ex.P20 – the post-mortem certificate. According to him, the cause of death was due to burns. viii) On 14.09.2010, PW17 arrested the accused and after collecting all the necessary documents including F.S.L., report, a charge-sheet came to be filed, which was taken on file as P.R.C. No. 6 of 2011 on the file of Additional Judicial Magistrate of First Class, Kavali. 4. On appearance of the accused, copies of documents as required under Section 207 Cr.P.C., came to be furnished. 4. On appearance of the accused, copies of documents as required under Section 207 Cr.P.C., came to be furnished. Since the case is triable by Court of Sessions, the same was committed to Court of Sessions under Section 209 Cr.P.C. Basing on the material available on record, charge as referred to above came to be framed, read over and explained to the Accused, to which, the Accused pleaded not guilty and claimed to be tried. 5. In support of its case, the prosecution examined PW1 to PW17 and got marked Ex.P1 to Ex.P28, beside marking M.Os.1 to M.O.6. Out of 17 witness examined by the prosecution, PW1 to PW7 and PW9 did not support the prosecution case and they were treated as hostile. After completion of prosecution evidence, the Accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which he denied, however, no evidence was adduced in support of his plea. 6. Relying upon the two dying declarations, the learned Sessions Judge convicted the Accused for the offence punishable under Section 302 I.P.C. Against this conviction, the present Appeal is filed. 7. (i) Sri. M. Ravindra, learned Counsel appearing for the Appellant/Accused, mainly submits that, there is absolutely no legal evidence available on record to connect the Accused with the crime. He further submits that, the two dying declarations, which are made the basis to connect the Accused with the crime, cannot be relied upon as they are an outcome of the tutoring. In any event, he would submit that, there were disputes between the Accused and the family members of the deceased and the evidence of Head Constable [PW11] show that a lady was present by the side of the deceased in the ward before the arrival of the Magistrate [PW15] who was sent out. Therefore, possibility of tutoring by that lady, who according to him is sister-in-law of the deceased cannot be ruled out. He further submits that, if really kerosene was poured and deceased was set on fire, absence of hydro carbon on the burnt clothes of the deceased would show that the incident occurred in totally different circumstance. He also submits that, since the contents of two dying declarations are at variance, benefit of doubt has to be given to the accused. 8. The same is opposed by Sri. He also submits that, since the contents of two dying declarations are at variance, benefit of doubt has to be given to the accused. 8. The same is opposed by Sri. S. Dushyanth Reddy, learned Additional Public Prosecutor appearing for the State, contending that, there is absolutely no variance in the two dying declarations recorded by the Magistrate [PW15] and the Head Constable [PW11] and even if there is variation, the one that inspires confidence in the mind of the Court can be taken into consideration. He further submits that, the absence of hydro carbons on M.O.6 may not matter much, for the reason that, M.O.6 was seized from the scene of offence and not from the body of the deceased. He further submits that, not obtaining the endorsement of the Doctor as to the mental status of the deceased prior to recording the dying declaration will not prejudice the accused or that may not be a circumstance to disbelieve the dying declaration. In view of the above, he would submit that the conviction and sentence imposed requires no interference. 9. The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the Accused beyond doubt for the offence punishable under Section 302 I.P.C.? 10. As seen from the record, all the material witnesses did not support prosecution case and the entire case is on the two dying declarations recorded by Magistrate [PW15] and Head Constable [PW11]. Insofar as the dying declaration [Ex.P21] recorded by the Magistrate is concerned, the learned Counsel for the Appellant/Accused tries to take advantage of the answers elicited in the cross-examination of the Magistrate that, before putting preliminary question to know the state of mind of the declarant [deceased], he did not obtain the endorsement of the duty doctor as to the state of mind of the declarant. 11. But, it is to be noted that the Hon’ble Apex Court has time-and-again held in number of cases that, satisfaction of the Magistrate with the regard to mental state of the injured is paramount consideration and not taking endorsement of the Doctor, will not be fatal in all circumstances. 12. 11. But, it is to be noted that the Hon’ble Apex Court has time-and-again held in number of cases that, satisfaction of the Magistrate with the regard to mental state of the injured is paramount consideration and not taking endorsement of the Doctor, will not be fatal in all circumstances. 12. In the instant case, a perusal of Ex.P21 [dying declaration] would show that, initially PW15 [Magistrate] put some preliminary questions to the injured [deceased] and after being satisfied, obtained a certificate of the doctor, who stated that the patient [deceased] is conscious, coherent and fit state-of-mind and after taking the endorsement of the doctor, he proceeded to record the statement of the injured [deceased]. Therefore, the argument that there was no endorsement of the doctor at all may not be correct. The endorsement of the doctor was obtained after the Magistrate [PW15] was satisfied with regard to mental condition of the injured [deceased] but prior to recording the statement. Thus, the argument that the entire dying declaration has to be eschewed from the consideration since there is no endorsement, cannot be accepted. 13. Coming to the next circumstance, namely, that these two dying declarations are an outcome of the tutoring; the learned counsel for the Appellant mainly relied upon the evidence of the Doctor [PW10] and the evidence of Head Constable [PW11], who came to the hospital on receiving the intimation from the hospital. 14. Insofar as the evidence of the Doctor [PW10] is concerned, it is stated that, on 07.09.2010 at 11.50 P.M., the injured was brought to the hospital by PW12, who is the sister-in-law of the deceased and her husband, who is the brother of the accused. In the cross-examination, PW10 admits that he does not know anybody other than Mangala Kotamma [PW12] and Mangala Venkataramanaiah, who came to the hospital along with the injured and were available outside the hospital. Even the deceased in her statement, which is placed on record as Ex.P21 states that, she was brought to the hospital by her brother-in-law, by name, Venkataramanaiah. The same is reflected in the earlier portion in the dying declaration and also in the contents of the dying declaration. 15. Even the deceased in her statement, which is placed on record as Ex.P21 states that, she was brought to the hospital by her brother-in-law, by name, Venkataramanaiah. The same is reflected in the earlier portion in the dying declaration and also in the contents of the dying declaration. 15. From the above, it is clear that while the deceased in her statements speaks about her brother-in-law and neighbours bringing her to hospital, the doctor in his evidence states that the brother-in-law of the deceased accompanied by his wife brought her to hospital. PW11, the Head Constable, who reached the hospital on receipt of intimation from the hospital, in his cross-examination admits that, about 10 to 15 persons who are relatives of the deceased were outside the hospital, and again says only one female person was with the deceased in the ward when he went inside the hospital and saw her. After entering into the ward, he asked the said female person to go away since the statement of the deceased has to be recorded. On coming to know the Magistrate is coming, he left the ward. 16. The learned Counsel also referred to the evidence of PW9, who is none other than the brother of the deceased. He did not support the prosecution case, but, however, in crossexamination by the learned Counsel for the accused, it was elicited that enemies of the deceased brought the deceased to Government Hospital, Kavali, and that the enemies of the accused after going to Government Hospital, shifted the injured to Government Hospital, Nellore, where she died at 4.30 P.M. He further submits that the enemies are his relatives. At the same time, learned Additional Public Prosecutor while cross-examining PW9, elicited as under: “I do not know the names and other details of the persons who are enemical to the accused and who are my relatives. I also do not know the details of any disputes between the said persons and the accused. There were no cases between them.” 17. From the evidence of PW9 and answers elicited by Additional Public Prosecutor, it is clear that this witness does not know the names and details of the persons who are inimical to the accused and who his relatives are. There were no cases between them.” 17. From the evidence of PW9 and answers elicited by Additional Public Prosecutor, it is clear that this witness does not know the names and details of the persons who are inimical to the accused and who his relatives are. He also admits that he does not know the details of any disputes between the said persons and the accused, but, however states that, there are no cases between them. Taking advantage of these answers given, the learned Counsel for the Appellant tried to persuade us to presume that it was the sister-in-law of the deceased who tutored the injured before recording the statement by the Magistrate. We are not inclined to accept this argument, for the reason that, there is no material on record to show that the sister-in-law of the deceased was there in hospital prior to arrival of the Magistrate. Secondly, the evidence of PW9 does not anywhere indicate that the sister-in-law and her husband, who is the brother of the accused were inimical to the accused. A reading of the answers elicited only show that there were number of enemies to the accused and his relatives were also enemies. Therefore, the argument of the learned Counsel for the Appellant that the lady present there is the sister-in-law of the accused, who was inimical towards the accused and it was she who tutored the deceased to make a false statement, cannot be accepted. Accepting the said statement would amount to deciding the case on surmises without any factual foundation over the person who tutored the injured. 18. The only other circumstance, which is now to be decided is, whether the two dying declarations are inconsistent and whether any reliance can be placed on these dying declarations. 19. The first dying declaration, which is marked as Ex.P21, was recorded by a Magistrate [PW15], while second dying declaration was recorded by Head Constable [PW11]. Even assuming for the sake of argument that there is some variance in the two dying declarations, but, if any one dying declaration inspires confidence, the same can be made basis to convict the accused. The first dying declaration, which is marked as Ex.P21, was recorded by a Magistrate [PW15], while second dying declaration was recorded by Head Constable [PW11]. Even assuming for the sake of argument that there is some variance in the two dying declarations, but, if any one dying declaration inspires confidence, the same can be made basis to convict the accused. 20 In Raju Devade v. State of Maharashtra, AIR 2016 SC 3209 the Apex Court held as under: “Each dying declaration has to be considered independently on its own merit so as to appreciate its evidentiary value and one cannot be rejected because of the contents of the other. In cases where there are more than one dying declaration, it is the duty of the court to consider each one of them in its correct perspective and satisfy itself that which one of them reflects the true state of affairs.” 21. When a dying declaration is recorded in accordance with law, which gives a cogent and plausible explanation of the occurrence, the Court can rely upon it as a solitary piece of evidence to convict the accused. It is for this reason Section 32 of the Evidence Act, 1872 is said to be an exception to the general rule against the admissibility of hearsay evidence and Clause (1) of Section 32 makes the statement of the deceased admissible. Such statement, classified as a “dying declaration” is made by a person as to the cause of his death or as to the injuries which culminated to his death or the circumstances under which injuries were inflicted. A dying declaration is thus admitted in evidence on the premise that the anticipation of proving death breeds the same human feelings as that of a conscientious and guiltless person under oath. It is a statement comprising of last words of a person before his death which are presumed to be truthful, and not infected by any motive or malice. The dying declaration is therefore admissible in evidence on the principle of necessity as there is very little hope of survival of the maker, and if found reliable, it can certainly form the basis for conviction. [Jayamma and Another V. State of Karnataka, (2021) 6 Supreme Court Cases 213]. 22. The dying declaration is therefore admissible in evidence on the principle of necessity as there is very little hope of survival of the maker, and if found reliable, it can certainly form the basis for conviction. [Jayamma and Another V. State of Karnataka, (2021) 6 Supreme Court Cases 213]. 22. A perusal of the said dying declarations would show that, there were disputes between the accused and the deceased, pursuant to which, she left her husband and went to her parents house at Hyderabad, but, she was brought by her husband with a promise that he would take care of her properly. But, there was no change in his attitude as he used to quarrel with her daily and torture her mentally and physically. On one day, the accused told her as, “he did not marry her and do what you would do”. On that night, he beat her and asked her to “die”. But, however, on the next day, at 11.00 a.m., he poured kerosene and set her on fire. It would be appropriate to extract the same, which is as under: 23. After recording the statement, an endorsement of the doctor was again taken with regard to conscious, coherence and fitness of mind of the injured. This statement, which is recorded by the Magistrate, in our view, has to be given much importance, for the reason that, the Magistrate has no grudge to speak falsehood. In-fact, the evidence of the Magistrate show that, by the time he entered the room, there was no one by the side of the injured. In the absence of any material to show that this statement is an out of the tutoring, the dying declaration recorded by the Magistrate [PW15], in our view, is sufficient to convict the accused. 24. Though, much comment has been made on the dying declaration recorded by the Head Constable [PW11], but, in the facts and circumstances of the case, we feel that it gives corroboration to the contents of the dying declaration recorded by the Magistrate [PW15]. The only discrepancy is, in one dying declaration, a detailed account about marriage and family life was mentioned, while the second dying declaration recorded by the Head Constable [PW11], the injured [deceased] only refers to the incident in question, i.e., the accused pouring kerosene and setting her on fire and being shifted to Government Hospital in 108 by neighbours. The only discrepancy is, in one dying declaration, a detailed account about marriage and family life was mentioned, while the second dying declaration recorded by the Head Constable [PW11], the injured [deceased] only refers to the incident in question, i.e., the accused pouring kerosene and setting her on fire and being shifted to Government Hospital in 108 by neighbours. There is no reference to her sister-in-law accompanying her to the hospital. But, in our view, this circumstance by itself does not throw any doubt on the contents of the statement; more so, when the said statement is endorsed by the doctor with regard to conscious, coherence and fitness of the injured. Though, PW10 [Doctor], who made the endorsement in his cross-examination states that, he was not present when the police recorded the statement, but, he categorically states that the said statement was brought to him while he was in his chair and after examining the patient and after satisfying himself with the condition of the patient, he made endorsement to that affect. Even if the statement recorded by the Head Constable [PW11], which is placed on record as Ex.P16 is excluded from consideration, still there is no reason to disbelieve Ex.P21 - the statement of the deceased recorded by the Magistrate. 25. One another circumstance, which the learned Counsel for the Appellant now try to contend that, it was a case of suicide. Relying upon the report of Forensic Lab to show that, in the absence of any hydro carbon on M.Os. 3, 4 and 5, there is any amount of doubt, whether the incident happened in the manner suggested by the prosecution, namely, accused pouring kerosene and setting the deceased on fire. We are not in agreement with the argument advanced by the learned Counsel for the Appellant, for more than one reason. Firstly, M.Os. 3, 4 and 6, which were sent to R.F.S. Lab, indicate that hydro carbons were present on M.O.1 and they were absent on M.Os. 3, 4 and 6. The Counsel for the Appellant was particular in contending that since hydro carbon is not present on M.O.6, the incident of accused pouring kerosene on the deceased has to be viewed with suspicion. It is to be noted here that, M.O.6 is a burnt piece of saree, which was seized from the scene of offence. The mediators and the inquest panch witnesses speak to the same. It is to be noted here that, M.O.6 is a burnt piece of saree, which was seized from the scene of offence. The mediators and the inquest panch witnesses speak to the same. Therefore, this is not a saree, which the deceased was wearing at the time of the incident, as it nobody’s case that this saree was removed from the body of the deceased after she was set on fire. Normally the clothes of the deceased would be removed prior to body being sent for post-mortem examination. In the instant case, as stated earlier, M.O.6 is the burnt piece of saree, which was found lying at the scene of offence. Therefore, the contention of learned Additional Public Prosecutor that this has nothing to do with the incident in question cannot be brushed aside. 26. Further the learned Counsel for the Appellant would submit that, the injuries are on the face and right side portion of the body and that the same can be caused only if one pours kerosene on herself and definitely not by third person pouring kerosene on the body. It is well settled factual position that, in normal circumstances, if a person intends to commit suicide, he or she will pour kerosene from the top of head and set himself on fire, and only in case where a person is burnt to death by pouring kerosene or any other substance, it will be poured either on the face or on the body of the deceased, unless the deceased-injured was sleeping. But, in the instant case, the evidence of PW10 would show that the injuries were seen on hands and legs, face, chest and abdomen, of the deceased. Merely because the burn injuries were not on the back side of the body, one cannot infer that it was a case of suicide. Therefore, since, the hair of the deceased was not burnt at all and the burn injuries were mostly on the hands, legs, stomach and abdomen, the argument that it was a case of suicide cannot be accepted. 27. For the aforesaid reasons, we are of the view that the prosecution succeeded in establishing the guilt of the Appellant/Accused beyond reasonable doubt and the trial court rightly convicted the Appellant. 28. 27. For the aforesaid reasons, we are of the view that the prosecution succeeded in establishing the guilt of the Appellant/Accused beyond reasonable doubt and the trial court rightly convicted the Appellant. 28. In the result the appeal fails and it is accordingly dismissed, confirming the conviction and sentence recorded against the appellant/accused in the Judgment, dated 13.01.2016, Sessions Case No. 94 of 2012 on the file of Principal Sessions Judge, Nellore. 29. Consequently, miscellaneous petitions, if any, pending shall stand closed.