Dismissed

The State of Ap., Rep. by Pp., Hyderabad v. Repalli Buchanna, Kurnool District and 2 Othrs.

Andhra Pradesh HC14 Nov 2022CRLA/273/2015

Case brief

AI extract

What is this about?

In a criminal appeal challenging an acquittal on charges of murder under Section 302 IPC, the High Court dismissed the State's appeal. The court held that the trial court's finding that the deceased committed suicide was a possible view and that the acquittal required no interference.

What did the court decide?

The criminal appeal by the State was dismissed, and the trial court's acquittal was confirmed.

The State of Ap., Rep. by Pp., Hyderabad… — Murder and Culpable Homicide | Andhra Pradesh HC (2022)

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THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR

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AND

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THE HON’BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

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CRIMINAL APPEAL No.273 of 2015

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JUDGMENT : (Per Hon’ble Sri Justice C. Praveen Kumar)

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Accused 1 to 3 in Sessions Case No.542 of 2008 on

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the file of the Special Judge for Trial of Cases under SCs & STs (POA) Act-cum-VI Additional District & Sessions Judge, Kurnool, were tried for the offences punishable under Section 498-A, 302 r/w. Section 34 of Indian Penal Code, 1860 [for short, ‘I.P.C.”].

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By its judgment, dated 19.01.2011, the learned Sessions Judge acquitted all the accused for the charges levelled against them. Challenging the same, the present appeal came to be filed by the appellant/State.

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The substance of the Charge against the accused is that all the accused together subjected the deceased cruelty and thereafter A.1 and A.2 caused the death by pouring kerosene and litting her on fire and that A.3 was present along with A.1 and A.2.

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The case of the prosecution, as seen from the evidence on record, is as under:-

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(a) The deceased is the wife of A.3 and daughter of P.W.2. A.1 and A.2 are parents of A.3. The marriage between the accused and the deceased took place about a year prior to the incident. After the marriage, she joined A.3 and started living with him. On 12.05.2008 at about 10.30 a.m. while P.W.1-Head Constable was present in Taluq Police Station, Kurnool, he received a phone call from Government Hospital about the admission of the injured/Pravallika in the hospital. The Out-Post Constable said to have made a phone call as per the intimation received by him. Immediately, P.W.1 rushed to the hospital at 11.10 a.m. and received M.L.C. intimation [Ex.P1]. After receiving the intimation, he proceeded to Burns Ward at Government Hospital, where he found a woman with burns in the said Ward and the Doctors and the Nurses were also present there. He asked the relatives of the said Pravallika, who were present there to go out and thereafter he recorded the statement of the injured which was read over to her. As her both the hands were burned,

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P.W.1 obtained impression of her left toe. He also taken endorsement of the doctor to show the injured was in a fit state of mind to give a statement. Ex.P2 is the said statement. Basing on the said statement, he registered a case in Crime No.115 of 2008 under Sections 498-A, 307 I.P.C. Ex.P3 is the First Information Report [F.I.R.].

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(b) On 12.05.2008 at about 2 p.m, P.W.12, who was working as II Additional Junior Civil Judge, Kurnool, received a requisition for recording Dying Declaration of the injured. Accordingly, she proceeded to the Government Hospital, Kurnool and after identifying the victim woman, and on being satisfied that the deceased was fit to give the statement, recorded the statement of the injured. Ex.P16 is the Dying Declaration recorded by her. According to her, she also took the endorsement of the doctor, which disclosed that the deceased was conscious, coherent and in a fit state of mind to give a statement.

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(c) On 12.05.2008 at about 1.30 p.m, P.W.16-Sub Inspector of Police was in Police Station, he received information from P.W.1 about the admission of the injured

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in the hospital and P.W.1 recording the statement of the injured, and also registering of a case. Immediately, he proceeded to the hospital and took up investigation. He also claims to have recorded the statement of the injured. According to him, he secured the presence of P.Ws.2 and 3 and also recorded the statements. From there, he proceeded to scene of offence where he prepared rough sketch, which is recorded as rough sketch under Ex.P20. He also seized half burnt pieces of saree, blouse, petty coat etc. from the scene. He also prepared an observation report of the scene, which is marked as Ex.P21 in the presence of P.Ws.8 and 9.

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(d) On 17.05.2008, P.W.14-Head Constable of Taluq Police Station, received death intimation of the injured, basing on which, he altered the Section of Law from Section 498-A, 306 I.P.C. to Section 302 r/w.34 I.P.C. Ex.P19 is the altered F.I.R.

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(e) P.W.15-Inspector of Police, who on receipt of altered F.I.R. from P.W.14, he gave requisition to P.W.11M.R.O. and requested him to conduct inquest over the

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dead body of the deceased at Government Hospital, Kurnool. He also proceeded to the hospital and was present when the time P.W.11 conducted inquest over the dead body. Ex.P12 is the inquest report. As per the inquestdars, they opined that the death was due to burn injuries. During inquest, he examined P.Ws.2 to 4 and others.

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(f) After conducting the inquest, the dead body was sent for Post Mortem examination. P.W.13-Assistant Professor, Department of Forensic Medicine, Kurnool, conducted autopsy over the dead body of the deceased and issued Ex.P17-Post Mortem examination. According to him, the cause of death was due to septiciemia due to infection of burns.

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After arrest of all the accused and after collecting all the necessary documents, and after completion of investigation, P.W.15-Inspector of Police filed Charge Sheet, which was taken on file as P.R.C.No.53 of 2008 on the file of Judicial Magistrate of First Class, Kurnool.

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On appearance of the accused, copies of the

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documents as required under Section 207 Cr.P.C. were supplied to them. As the case is triable by a Court of Sessions, the case was committed to the Court of the Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned Special Judge for trial of cases under SCs & STs (POA) Act-cum-VI Additional District and Sessions Judge, Kurnool for trial and disposal in accordance with law.

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Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and explained to the accused in Telugu, to which, they pleaded not guilty and claimed to be tried.

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To substantiate its case, the prosecution examined P.Ws.1 to 17 and got marked Exs.P1 to P21. Out of seventeen witnesses examined by the prosecution, P.Ws.2 to 9 did not support the case of the prosecution and were treated hostile by the prosecution.

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After the closure of Prosecution evidence, the accused

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were examined under Section 313 Cr.P.C. with reference to

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the incriminating circumstances appearing against them in the evidence of the prosecution witnesses, to which, they denied. However, they did not adduce any oral or documentary evidence on their behalf. As all the witnesses turned hostile and two Dying Declarations recorded did not inspire the confidence of the Court, learned Sessions Judge acquitted all the accused. Against the order of acquittal, the State preferred the present appeal.

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The Hon’ble apex Court, in Murugesan and 16 others vs. State Through Inspector of Police¹ , while dealing with scope of acquittal in a case arising out of an appeal filed against an order of acquittal observed as under:-

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“ 18. Before proceeding any further it will be useful to recall the broad principles of law governing the power of the High Court under Section 378 CrPC, while hearing an appeal against an order of acquittal passed by a trial Judge.

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19. An early but exhaustive consideration of the law in this regard is to be found in the decision of Sheo Swarup v. King Emperor [(1933-34) 61 IA 398 : AIR 1934 PC 227 (2)] wherein it was held that the power of the High Court extends to a review of the entire evidence on the basis of

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1 (2012) 10 SCC 383

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which the order of acquittal had been passed by the trial court and thereafter to reach the necessary conclusion as to whether order of acquittal is required to be maintained or not. In the opinion of the Privy Council no limitation on the exercise of power of the High Court in this regard has been imposed by the Code though certain principles are required to be kept in mind by the High Court while exercising jurisdiction in an appeal against an order of acquittal. The following two passages from the report in Sheo Swarup [(1933-34) 61 IA 398 : AIR 1934 PC 227 (2)] adequately sum up the situation : (IA p. 404)

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“There is, in their opinion, no foundation for the view, apparently supported by the judgments of some courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower court has ‘obstinately blundered’, or has ‘through incompetence, stupidity or perversity’ reached such ‘distorted conclusions as to produce a positive miscarriage of justice,’ or has in some other way so conducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result.

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Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper

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weight and consideration to such matters as ( 1 ) the views of the trial judge as to the credibility of the witnesses; ( 2 ) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; ( 3 ) the right of the accused to the benefit of any doubt; and ( 4 ) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice.” (AIR pp. 229-30)

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20. The principles of law laid down by the Privy Council in Sheo Swarup [(1933-34) 61 IA 398 : AIR 1934 PC 227 (2)] have been consistently followed by this Court in a series of subsequent pronouncements of which reference may be illustratively made to the following : Tulsiram Kanu v. State [AIR 1954 SC 1 : 1954 Cri LJ 225] , Balbir Singh v. State of Punjab [AIR 1957 SC 216 : 1957 Cri LJ 481] , M.G. Agarwal v. State of Maharashtra [AIR 1963 SC 200 : (1963) 1 Cri LJ 235] , Khedu Mohton v. State of Bihar [(1970) 2 SCC 450 : 1970 SCC (Cri) 479] , Sambasivan v. State of Kerala [(1998) 5 SCC 412 : 1998 SCC (Cri) 1320] , Bhagwan Singh v. State of M.P. [(2002) 4 SCC 85 : 2002 SCC (Cri) 736] and State of Goa v. Sanjay Thakran [(2007) 3 SCC 755 : (2007) 2 SCC (Cri) 162] .

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21. A concise statement of the law on the issue that had emerged after over half a century of evolution since Sheo Swarup [(1933-34) 61 IA 398 : AIR 1934 PC 227 (2)] is to

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be found in para 42 of the Report in Chandrappa v. State of Karnataka [(2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325]. The same may, therefore, be usefully noticed below : (SCC p. 432)

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“ 42 . From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

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( 1 ) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

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( 2 ) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

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( 3 ) Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

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( 4 ) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly , the presumption of

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innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly , the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

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( 5 ) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court .”

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(emphasis supplied)

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x x x x x

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32. In the above facts can it be said that the view taken by the trial court is not a possible view? If the answer is in the affirmative, the jurisdiction of the High Court to interfere with the acquittal of the appellant-accused, on the principles of law referred to earlier, ought not to have been exercised. In other words, the reversal of the acquittal could have been made by the High Court only if the conclusions recorded by the learned trial court did not reflect a possible view. It must be emphasised that the inhibition to interfere must be perceived only in a situation where the view taken by the trial court is not a possible view. The use of the expression “possible view” is conscious and not without good reasons. The said expression is in contradistinction to expressions such as “erroneous view” or “wrong view” which, at first blush, may seem to convey a similar meaning though a fine and subtle difference would be clearly discernible.

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33. The expressions “erroneous”, “wrong” and “possible” are defined in Oxford English Dictionary in the following terms:

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“ erroneous .— wrong; incorrect.

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wrong .—(1) not correct or true, mistaken.

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(2) unjust, dishonest, or immoral.

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possible .—(1) capable of existing, happening, or being achieved.

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(2) that may exist or happen, but that is not certain or

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probable.”

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Keeping in view the law laid down by the Hon’ble Supreme Court in the judgment referred to above, it is now

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to be seen whether the case on hand warrants interference?

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Sri S. Dushyanth Reddy, learned Additional Public Prosecutor, for the appellant/State would contend that not only two Dying Declarations recorded, but the evidence of witnesses who turned hostile, gets corroboration to connect the accused with the crime. He took us through the evidence of witnesses to contend that it is a fit case where

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the judgment requires interference. Apart from that learned Additional Public Prosecutor would contend that though Ex.P2 first Dying Declaration recorded by P.W.1

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was placed on record, there is absolutely no discussion on the contents of the said Dying Declaration. On the other hand, the finding given that the said Dying Declaration got damaged during floods in Kurnool, may not be correct.

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On the other hand, Sri D. Kodandarami Reddy, learned counsel for the respondents/A.1 to A.3, would contend that in the earlier documents it has been categorically mentioned that the deceased committed suicide by pouring kerosene and as such the two Dying Declarations cannot be believed, more so when evidence on record also establishes that the family members of the deceased were present with the deceased prior to recording of the Dying Declaration. According to him, there is every possibility of tutoring the injured before giving the declaration. Having regard to the law laid down by the Hon’ble Supreme Court in Paparambaka Rosamma and other vs. State of Andhra Pradesh² and Division Bench of this Court in A. Savithramma and another vs. State of Andhra Pradesh³ , the learned counsel for the

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2 1999 (7) SCC 695

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3 2009(2) ALT (Crl) 81 (D.B)

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respondents/A.1 to A.3 would contend that the benefit extended by trial Court requires no interference.

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In reply, the learned Additional Public Prosecutor would contend that even though the witnesses turned hostile, still that portion of the evidence, which supports the case of the prosecution, can be looked into.

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In so far as the arguments of learned Additional Public Prosecutor that the evidence of the hostile witnesses to the incident, which supports the prosecution case can be looked into, the same cannot be disputed. In Shyamal

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Ghosh vs. State of West Bengal⁴ , the Hon’ble apex Court in para 45.3 held as under:-

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“45.3. Thirdly , even the version given by PW 13 and PW 23 partially supports the case of the prosecution, though in bits and pieces. For example, PW 23 has stated that the driver of the Maruti van was Manik Das and also that he had taken out the vehicle from the parking lot at about 9.30 p.m. on the day of the incident and had brought it back after midnight. He also stated that this car was being driven by Manik Das. Similarly, PW 13 also admitted that other rickshaws were standing at the stand. This was the place where PW 9 and PW 11 had

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4 (2012) 7 SCC 646

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seen the loading of the gunny bags into the Maruti van. In other words, even the statements of witnesses PW 13 and PW 23, who had turned hostile, have partially supported the case of the prosecution. It is a settled principle of law that statement of a hostile witness can also be relied upon by the court to the extent it supports the case of the prosecution. Reference in this regard can be made to Govindaraju v. State [(2012) 4 SCC 722 : (2012) 2 SCC (Cri) 533]”

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Coming to the merits of the case, as stated earlier, P.Ws.2 to 9 did not support the case of the prosecution, and they were treated hostile by the prosecution. But, the learned Additional Public Prosecutor, for the appellant/State mainly relied upon the evidence of P.Ws.5 and 6 to contend that, their evidence though declared hostile, can be taken into consideration to the extent their statement support the prosecution case.

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Before dealing with the same, it would be appropriate to refer to the two Dying Declarations recorded. In the first Dying Declaration recorded by P.W.1, which placed as Ex.P2, the deceased stated as under:-

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“My birth place is Gonegandla Mandal, Gajuladinne village. Myself and my husband both are living by doing coolie work. We are four female and two male to our

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parents, I am the third one. One year back, I was given in marriage to Samson, S/o.Madiga Bitchanna of Ambedkar Nagar of Dinnedevarapadu Gram Panchayat. Since the date of marriage my mother-in-law Jyothamma, my fatherin-law Bitchanna, and my husband Samson harassed and subjected me physically and mentally, again and again they used to quarrel with me and beat me. My husband used to ask me to go and die as I am not beautiful. I was not informed the same to my parents and doing family. Yesterday i.e., 11.05.2008 night at about 8.00 hours myself and my husband were given coolie amount of Rs.830/-, and all the amount was taken by my mother-inlaw and father-in-law. I asked them Rs.50/- towards vegetables, but they denied and abused me as “Lanja

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neevu dabbulu aduguthava neevu avasaramu ledu chachipo” , also harassed from night 9.00 p.m. by saying that, my face is looking like a prostitute. Due to this unbearable harassment, night at about 3.00 hours, I intent to die, sprinkled kerosene myself on me. On seeing it, my mother-in-law and father-in-law lit fire with a matchbox stick. Due to those flames, I raised loud cries as “Champinaru raa”. While burning all my clothes one Peddaiah who is nearer to my house put-off the flames. Then, I was shifted to Government General Hospital, Kurnool in 108 Ambulance and admitted there. I was sustained burnt injuries from my face to feet completely. Due to unbearable harassment of my husband, mother-inlaw and father-in-law and on their instigation to die, I poured kerosene on me and they lit fire to me, prior to this my husband went to Bricks factory for work. Today on your enquiry, I am deposing the incident and it was scribed by you on my dictation. Read over to me and

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admitted by me that what was scribed it is same as stated by me.”

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From a reading of the Dying Declaration recorded by P.W.1, it is clear that on 11.05.2008 at night 8.00 p.m. herself and her husband were given coolie amount of Rs.830/- and the entire amount was taken away her father-in-law and mother-in-law. The deceased requested them to give Rs.50/- for purchase of vegetables, but they denied, abused her in vulgar language and also harassed by stating that she is not good and she should die. It is also stated that they were harassing her from 9.00 p.m., stating that the deceased was looking like a prostitute. At about 3.00 a.m. midnight, she with a view to die, sprinkled kerosene on herself and on seeing the same, her motherin-law and father-in-law lit a match stick and threw it at her. While she was in flames, P.W.5, whose house is nearer to the house of the deceased, came there, put off the flames and shifted the injured in 108 Ambulance. It is said that due to instigation of her husband, mother-in-law and father-in-law, she poured kerosene, but they set her on fire. This was made the basis for registering the F.I.R.

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In the Dying Declaration recorded by Magistrate, which is placed on record as Ex.P16, the injured stated that on 12.05.2008 at about 3.00 a.m. she poured kerosene on herself and that her mother-in-law and fatherin-law set her on fire. It was further stated that at that time, her husband was not present in the house. She further states that frequently her husband, mother-in-law and father-in-law used to insist her to die, because of which, she poured kerosene. According to her, after the incident, neighbours came, put off the flames and called the Ambulance. It is said that neither her husband nor mother-in-law and father-in-law came to the hospital.

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A reading of the second Dying Declaration would show that there is no reference to the incident, which took place at 8.00 p.m. in the house and the Dying Declaration gives a clean chit to her husband. But, one thing which is consistent in both the Dying Declarations is that incident happened at 3.00 a.m. A conjoint reading of two Dying Declarations show that in respect of an incident that took place at 8.00 p.m, the deceased poured kerosene at 3.00 a.m.

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Two questions, which fall for consideration is, whether it is possible to believe that A.1 and A.2 would have waited till 3.00 a.m, for the deceased to pour kerosene and then set her on fire?

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The learned Sessions Judge, disbelieved the contents of two Dying Declarations mainly on the ground that (1) the contents in the Dying Declarations were not supported by any other witnesses; (2) that it is difficult to believe that parents-in-law would be waiting till 3.00 a.m. in the midnight or waiting for the deceased to pour kerosene for the purpose of setting her on fire; (3) that no evidence came on record as to whether it was A.1 or A.2 who is said to have lit the match stick and (4) that the evidence of P.W.1 disclose presence of family members prior to the recording of Dying Declaration, which throws any amount of suspicion on the Dying Declarations as they could be an outcome of tutoring.

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It is well established principle of law that a Dying Declaration, if found to be true and inspires confidence in the mind of the Court, can be made the basis to convict the accused?

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But, in the instant case, one fact which to be noted is that the dispute between the deceased and A.1 and A.2 who are her In-laws, took place at 8.00 p.m. when they refused to give Rs.50/- to her. They are alleged to have abused her in filthy language at that point of time. At about 3.00 a.m. in the midnight, unable to bear the harassment, the deceased is said to have poured kerosene, seeing the same, A.1 and A.2 lit a match stick and set her on fire. She gave a clean chit to her husband, in one of the Dying Declarations stating that he was not in the house at that point of time i.e. in the midnight, which version is found to be contrary to the contents of first Dying Declaration recorded by the Head Constable.

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Further, the sketch of the scene of offence show that the house consists of three rooms and the incident in question, took place in the kitchen. Therefore, possibility

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of A.1 and A.2 watching the deceased all through the night, with a hope that she would pour kerosene on herself, so that they can set her on fire, appears to be doubtful. If their intention was to kill the deceased, they could have done so by pouring kerosene and set the deceased on fire immediately after the quarrel that took place at 8.00 p.m. There was no necessity for them to wait till 3.00 a.m. to lit fire, on deceased pouring kerosene on herself. The circumstance in our view appears to be slightly improbable, and as such, the findings of the trial Court warrants no interference.

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At this stage, the learned Additional Public Prosecutor would contend that the learned Sessions Judge did not consider the first Dying Declaration recorded by the Head Constable, which is placed on record as Ex.P2. It is no doubt true that the learned Sessions Judge while referring to the statement of the deceased recorded by P.W.1, observes states that Ex.P2 was not marked, as it got soaked due to floods in Kurnool. We are of the view that the Sessions Judge must have been carried away by the attempts made by P.W.1 in his evidence wherein he states

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that in view of the floods that occurred on 02.10.2009, the record was drenched in water, and the bottom portion of the statement was pealed off and that the said fact was brought to the notice of both the parties. But, the entire Ex.P2, which is marked before the Court, does not indicate tearing of the lower portion of the statement. Having regard to the findings recorded, we feel that non-marking or non-referring to Ex.P2 may not matter much, more so when there is a reference to it in the judgment. In fact, the accused would be the proper person to take benefit, if there is any suppression and not by the State.

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Dealing with the conduct of the accused, the document “intimation of incident and the injuries to the Police”, issued by the doctor at 9.00 a.m. would show that the deceased herself poured kerosene and set her on fire at about 3.35 a.m. at her house. It would be appropriate to extract the same, which is as under:-

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“INTIMATION OF ACCIDENTS AND INJURIES TO POLICE

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Name of the Patient : Pravallika Age: 22 y. Sex : F Address: Door No. : W/o.Samson. Street : Ambedkar Nagar. Village : Town : Kurnool

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Brought in by : Jasuva (neighbour) 4. Place at which the injury or Accident occurred :

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Nature of injury or accident

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(simple or grievous): Pouring of kerosene by herself and litting fire at 3.45 a.m. on 12.05.2008 at her residence.

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Alleged cause :

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Ward in which admitted:

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Whether dying declaration necessary:

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Government General Hospital, KURNOOL. At 9.00 a.m. Date: (Signature) Telephone at: Time of despatch of intimation to the Police and Magistrate.”

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Further, the intimation sent to the Magistrate by the Police,

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which is placed on record as Ex.P15 also show that the deceased attempted to commit suicide at 3.45 a.m, which

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is as under:

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“INTIMATION OF ACCIDENTS AND INJURIES TO THE HON’BLE

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MAGISTRATE

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Name of the Patient : Pravallika Age: 22 y. Sex : F Address: Door No. : W/o.Samson. Street : Ambedkar Nagar. Village : Dinnedevarapadu Town : Kurnool 3. Brought in by : Jasuva 4. Place at which the injury or Accident occurred : Burns

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Nature of injury or accident (simple or grievous): Attempting suicide at her home At 3.45 a.m. on 12.05.2008

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Alleged cause : 7. Ward in which admitted : Burns Ward. 8. Whether dying declaration necessary : - Yes-

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Whether dying declaration necessary :

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Government General Hospital, KURNOOL. Date: (Signature) Telephone at: Time of despatch of intimation to the Police and Magistrate.”

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(Signature)

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Therefore, the information which was furnished by the persons, who brought the deceased to the hospital at the first instance, reveals that the deceased committed suicide by pouring kerosene and set her on fire. Subsequently, it appears that the deceased changed her version. P.W.1 who was the first person to proceed to the hospital, [prior to recording the Dying Declaration] categorically states that before recording the statement, he found relatives in the hospital and asked them to go out. In the cross-examination, he admits that about seven to eight persons who are relatives of the deceased, were present near the bed and that the injured was talking to her relatives and the relatives were also talking with the injured when he first noticed her at the Burns Ward. It would be appropriate to extract the same, which is as under:-

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“I noticed seven to eight persons who are said to be the relatives of said Pravallika present near her bed. It is true that the injured Pravallika was talking to her relatives and the said relatives were also talking with the injured when I first noticed her at burns ward.”

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It may be true that at the time of recording the statement, except P.W.1, nobody was present by the side of the injured, but, prior to recording the statement, about seven or eight family members present there, were talking with the injured. Therefore, the argument of learned counsel for the respondents/accused that the statement of the injured was an outcome of tutoring cannot be brushed aside.

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Similarly, P.W.12, who recorded the second Dying Declaration of the deceased at 2.00 p.m. on 12.05.2008 categorically admits that after she went into the room, asked all the relatives of the deceased to leave the room. It would be appropriate to extract the same, which is as under:-

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“It is true that after I went into the room I asked all the relatives of the deponent to leave the room”.

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Further, in the second Dying Declaration recorded, the deceased changed her version by giving a clean chit to her husband and blamed her in-laws only. But, fact remains that before recording both the Dying Declarations, the deceased was surrounded by her relatives. Hence,

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possibility of these two Dying Declarations being an outcome of tutoring cannot be ruled out.

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Learned Additional Public Prosecutor, relies upon the evidence of P.Ws.5 and 6, to contend that the conduct of the accused in keeping quiet when the deceased was in flames speak volumes. Both P.Ws.5 and 6 resile from their earlier statements. But P.W.5 in his evidence in chief-examination, states that his house and house of the accused are intervened by one house. On the date of incident, he woke at 3.00 a.m. to water, feed and collect milk from the cattle. He noticed flames from the house of the accused which is situated abutting the house from the road. Immediately, he went there and noticed the deceased. He also noticed A.1 and A.2 near the injured and both of them raising cries. Meantime, the neighbouring persons also gathered and flames were put off by using water and gunny bags. Thereafter, the injured was shifted to Government Hospital.

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In the cross-examination by learned Public Prosecutor, P.W.5 gives a different version stating that A.1

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and A.2 were present in the verandah and the deceased was in the kitchen raising cries. He further admits that neighbours took the injured to the hospital. However, in the cross-examination by the accused, he again gives a different version stating that A.1 and A.2 also raised cries to save the deceased/Pravallika and that both A.1 and A.2 participated in putting off the flames on the deceased and that both the accused followed the deceased in an Auto. Therefore, no reliance can be placed on this witness due to inconsistent versions. But, learned Additional Public Prosecutor would contend that the statement of witnesses to the extent it corroborates the case of the prosecution can be believed. There is no dispute with regard to the said propositions, but the fact remains that both the accused were present in the house when the deceased was in flames, which fact alone is in tune with prosecution case. The other circumstance, namely conduct of the accused is not consistent in the evidence of P.W.5.

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Coming to the evidence of P.W.7, who is also a neighbour to the accused, deposed in chief-examination about the incident stating that all the accused put off the

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flames and that he joined the accused in putting off the flames along with another neighbours, but however, this witness was treated hostile.

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In the cross-examination by learned Public Prosecutor, it was elicited that P.W.7 does not know why the deceased/Pravallika was in flames. According to him, P.Ws.5, 6 and others also went to put off the flames on hearing the cries of the deceased. It was elicited that initially P.Ws.5 and 6 went there to put off the flames and after they started the process, the rest joined. About five or ten minutes after the process of putting off the flames was started by P.Ws.5 and 6, the accused also joined them to put off the flames. This answer came to be elicited by the learned Public Prosecutor in the cross-examination of the witness after declaring him hostile. No clarification about the same was obtained later. The other suggestions that it was the accused who were responsible to set fire the deceased were denied. The answers elicited by Public Prosecutor in the cross-examination of P.W.5, after declaring hostile, is tested with the answers elicited in the cross-examination of P.W.7 by the Public Prosecutor,

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revealed that the conduct of A.1 and A.2 cannot be treated as abnormal.

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Hence, a doubt arises as to whether really the deceased was speaking the truth, more so, having regard to the contents on the two intimations sent by the doctors, pursuant to the information furnished at the earliest point of time, coupled with the time and manner in which the incident took place.

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In the result, the appeal fails and it is accordingly dismissed, confirming the judgment, dated 19.01.2011, in Sessions Case No.542 of 2008 on the file of learned Special Judge for Trial of Cases under SCs & STs (POA) Act-cum-VI Additional District and Sessions Judge, Kurnool.

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Consequently, miscellaneous petitions, if any, pending shall stand closed.

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_______________________________ JUSTICE C. PRAVEEN KUMAR

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JUSTICE B.V.L.N. CHAKRAVARTHI

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Date: 14.11.2022 MS

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