Allowed

Shaik Rasool, v. The State of A.P.

Telangana HC9 Jul 2012CRLA/1000/2008

Case brief

AI extract

What is this about?

In this criminal appeal against conviction and sentence for murder (Section 302 IPC), the High Court held that two inconsistent dying declarations were unreliable. Due to material contradictions regarding the sequence of events which could not be corroborated, the trial court's conviction was unsustainable and set aside.

What did the court decide?

Conviction and sentence under Section 302 IPC set aside; appellant acquitted and set at liberty forthwith.

Shaik Rasool, Vs The State of A.P. — Murder and Culpable Homicide | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD

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Crl.A.No.1000 of 2008

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ORDER: (per the Hon’ble Sri Justice P.Durga Prasad)

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This appeal is directed against the conviction and sentence passed in S.C.No.262 of 2007 by the VII Additional District and Sessions Judge, FAC. V Additional District and Sessions Judge, Ongole on 21.07.2008.

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The appellant herein is the sole accused and he was prosecuted for the offences under Sections 302 and 498-A IPC.

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According to the prosecution the deceased Shaik Ameena Bee is the wife of the accused and their marriage took place about 13 years ago and they were blessed with two sons. The accused used to attend the stone crushing work and he was addicted to drinking and used to beat the deceased. The deceased also working as a coolie and the accused used to take the earnings of the deceased for drinking, in addition to that the accused used to suspect the fidelity of the deceased. Fifteen days prior to the incident, the deceased went to her parents’ house at Takaripalem and the accused also went there and tried to kill her by placing his legs on her throat. On the night of 22.04.2007 the deceased was sleeping in her house along with her younger son, at about 12.00 in the midnight the accused came in a fully drunken state and picked up quarrel with her and beat her. On that the deceased escaped and went to the house of her relation, P.W.5, but the accused went there and kicked their doors and abused P.W.5 and took away the deceased at about 01.30 a.m. on 23.04.2007. P.Ws.4 to 10 neighbours witnessed the same and did not interfere as it is a routine for them. After some time at about 04.00 a.m. on 23.04.2007 the accused picked up quarrel with the deceased and pulled her inside the house and poured kerosene on her and set fire

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with an intention to kill her. When the deceased caught in flames, she hugged the accused, but he escaped from the house. On hearing the cries of the deceased, P.Ws.4 to 10 came and saw the accused running away from the house and the deceased in flames, and they extinguished the flames by pouring water on her. On intimation about the incident P.Ws.1 to 3 rushed to the house of the deceased and admitted her in Government Hospital, Kanigiri for treatment. On intimation from the Government Hospital, P.W.19, S.I of police, visited the hospital at 06.00 a.m. on 23.04.2007 and recorded the statement of the deceased and registered the same as a case in Crime No.55 of 2007 under Sections 498-A and 307 IPC and took up investigation. P.W.15, Judicial First Class Magistrate, Kanigiri, recorded the dying declaration of the deceased. As the condition of the deceased was serious, she was referred to Government Hospital, Ongole for expert treatment. P.Ws.3 and 9 took her to the Government Hospital, Ongole, where she was declared dead. P.W.19, during the course of investigation, visited the scene of offence, prepared the rough sketch of the scene of offence, seized the kerosene tin, half burn saree of the deceased under a cover of panchanama in the presence of P.Ws.11 and 12 and got the scene of offence photographed by P.W.18 and recorded the statements of P.Ws.1 to 10 and on receipt of the death intimation the section of Law was altered to 498-A and 302 IPC. Thereafter, P.W.22 took up the investigation, held inquest over the dead body of the deceased and sent the dead body for postmortem examination and sent the material objects to FSL, Hyderabad for report. On 02.05.2007 the accused surrendered before P.W.19 and he confessed about the commission of offence. P.W.17, doctor, who conducted autopsy over the dead body of the deceased, opined that the deceased died of shock due to external anti-mortem burns. After completion of investigation, P.W.23 filed the charge sheet against the accused.

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The learned Sessions Judge has framed the charges under

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Sections 498-A and 302 IPC against the accused and he pleaded not guilty for the said charges.

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In order to establish the said charges, the prosecution examined P.Ws.1 to 23 and got marked Exs.P.1 to P.46 and M.Os.1 to 3. No oral or documentary evidence was adduced on behalf of the accused.

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The learned Sessions Judge by taking into consideration of the said oral and documentary evidence found the accused guilty for the offence under Section 302 IPC and convicted and sentenced to undergo imprisonment for life and also to pay fine of Rs.100/in default to undergo simple imprisonment for 15 days and he was acquitted for the charge under Section 498-A IPC.

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Aggrieved by the said conviction and sentence, the present appeal is filed by the accused.

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Now, the point that arises for consideration is:

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Whether the prosecution could able to establish the charge under Section 302 IPC against the accused beyond reasonable doubt?

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P O I N T:

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According to the prosecution the marriage of the deceased with the accused took place about 13 years ago and they used to earn their livelihood by attending stone breaking works and the accused addicted to drinking and also suspected the fidelity of the deceased and when the deceased went to her parents’ house, he also followed her and tried to kill her by pressing her throat with his legs. On the night of 22.04.2007, when the deceased sleeping in her house, the accused came to the house at 12.00 midnight in drunken condition and picked up a quarrel with her, due to which the deceased went to the house of P.W.5, but the accused went there and kicked their doors and abused P.W.5 and took the deceased to his house at about 01.30 a.m.

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Again at 04.00 a.m. the accused picked up a quarrel with the deceased, pulled her into the house and poured kerosene and set fire to her with an intention to kill her and the same was witnessed by P.Ws.4 to 10. On the information furnished by them, P.Ws.1 to 3 came there and admitted the deceased in the hospital, where the S.I of police recorded the statement of the deceased, and basing on which he registered a case in Crime No.55 of 2007 under Sections 498-A and 307 IPC. Thereafter, the Judicial First Class Magistrate, P.W.15, also recorded the dying declaration of the deceased. When the deceased was shifted to Government Hospital, Ongole, she was declared as dead.

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P.W.1 is the mother of the deceased. According to her, the marriage of the deceased with the accused was performed about 11 years prior to her death and they lived happily for 7 years after their marriage. Thereafter the accused addicted to drinking, gambling and beating her daughter and pressurizing her to come to their house and bring money to meet his vices. Her daughter died about 10 months back. About 10 days prior to the death of her daughter, her daughter came to their house as the accused beat her, later the accused came to their house in a drunken mood in the midnight at 01.00 a.m. and insisted that his wife should be sent along with him, when he was making galata the neighbours gathered and all of them advised the accused that he could come and take his wife on the next day morning as he was under drunken mood, but the accused did not leave their house and he caught hold of the neck of her daughter with his both hands and squeezed her neck. Then her husband got up and caught hold of the accused and pulled him out of the house and asked him to go away, but the accused did not leave the place and in the morning at about 09.00 a.m. the accused came inside the house and took his wife along with him to his house. She came to know that on the date of offence the accused went to C.S. Puram and returned home at about 10.00 p.m. and beat his wife in their house. Then her daughter went to

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the house of neighbour by name Pattan Khasimpeera and she also learnt that the accused went to their house in a drunken mood and made galata and forcibly dragged her daughter to his house and at about 05.00 a.m. he has poured kerosene on her daughter and set her on fire. Then her daughter sustained burns on her body and the neighbours took her to the Government hospital, Kanigiri. On coming to know about the incident, they came to the Government hospital, Kanigiri. When her daughter was in Government Hospital, the Judicial First Class Magistrate, Kanigiri recorded her dying declaration. When they enquired their daughter about her sustaining burns, she told that her husband poured kerosene and set her on fire when she was lying in her house and when the accused went away from the house, she came out of the house with flames and fell down and she was brought to the Government Hospital, Kanigiri.

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P.W.2, father of the deceased, also supported the version of P.W.1 with regard to the incident occurred in their house and about their coming to know about the incident on their enquiry from his daughter.

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P.W.3, brother of P.W.2, came to know about the incident that occurred in the house of P.Ws.1 and 2 through them and after receiving information about the deceased sustaining burn injuries, he came to the house of accused along with P.Ws.1 and 2 and came to know about the incident through the deceased.

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Therefore, P.Ws.1 to 3 came to know about the incident only through the deceased after her sustaining burn injuries and admitted in the Government Hospital, Kanigiri and they are not eyewitnesses to the incident. The circumstantial witnesses, who came to the scene after hearing the cries of the deceased and extinguished the fire, P.Ws.4 to 10 have not supported the case of the prosecution and they turned hostile to the prosecution. But P.Ws.4 and 5 have stated that the deceased was suffering with stomach-ache and she herself poured

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kerosene and set fire to herself.

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P.Ws.11 and 12, mediators for the scene of offence, also turned hostile to the prosecution and P.W.13, mediator for the inquest also turned hostile to the prosecution. The other evidence available on record is the evidence of P.W.15, Judicial First Class Magistrate, who recorded dying declaration of the deceased, P.W.16, V.A.O, mediator for the confession of the accused, P.W.17, doctor, who conducted autopsy over the dead body of the deceased; P.W.18, photographer, P.W.19, S.I of police, who recorded the statement of the deceased in Kanigiri hospital and issued the FIR, P.W.21, doctor, who gave first aid to the deceased and certified about the condition of the patient when P.W.15 recorded the dying declaration, P.W.22, C.I of police, who investigated the case, P.W.23, C.I of police, who has filed the charge sheet. Since there are no eyewitnesses or circumstantial witnesses to establish the commission of offence by the accused, the trial Court has relied upon the dying declarations recorded by P.Ws.15 and 19 and convicted the accused for the offence under Section 302 IPC.

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P.W.15 is Judicial First Class Magistrate, Kanigiri. According to her, she received requisition from Government Hospital, Kanigiri for recording the dying declaration of the deceased and she rushed to the Kanigiri hospital and found the deceased in Female Ward and she put preliminary questions to her and satisfied that the patient was conscious, coherent and in fit state of mind to give dying declaration. Thereafter, she recorded the dying declaration of the deceased and read over the same to her and obtained her thumb impression. She has stated before her that at about 04.00 a.m. her husband came in a drunken mood and poured kerosene and set her on fire. The duty doctor, who was present when she recorded the dying declaration, certified that the injured was conscious and coherent throughout her recording the declaration. The said declaration is marked as Ex.P.12 and the endorsement made by the doctor is Ex.P.13.

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P.W.21, who has given first aid to the deceased in the Government Hospital, Kanigiri, has also stated about his sending requisition to the Magistrate for recording dying declaration and also sending intimation to the police about the admission of the patient in the hospital and about his presence when P.W.15 recorded the dying declaration and appending his certificate, Ex.P.13 on the statement of the deceased, Ex.P.12. Thus, from the evidence of P.Ws.15 and 21 it is established that P.W.15, Judicial First Class Magistrate, recorded the dying declaration of the deceased when she was in fit state of mind. Subsequent to the recording of the said dying declaration by P.W.15, the S.I of police, P.W.19 also recorded the statement of the deceased. According to P.W.19 on 23.04.2007 at 05.45 a.m. he received intimation from the hospital about the admission of one lady with burn injuries, immediately he rushed to the hospital and found the deceased was in female ward and he recorded the statement of the deceased in the hospital and obtained her thumb impression and the duty doctor certified that the injured was conscious and coherent while recording the statement and the requisition received by him is marked as Ex.P.24 and the statement recorded by him is marked as Ex.P.25. Basing on which, he has registered the case in Crime No.55 of 2007 under Sections 498-A and 307 IPC and issued the F.I.R.

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Therefore, there are two dying declarations of the deceased, one recorded by P.W.15, Judicial First Class Magistrate under Ex.P.12 and another recorded by P.W.19, S.I of police, under Ex.P.25. The trial Court convicted the accused basing on the said two dying declarations.

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The counsel appearing for the appellant has pleaded that since the said two dying declarations are not consistent with each other in all material aspects, they cannot be relied upon for recording the conviction.

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In support of her contention, she relied upon a decision in “Dandu Lakshmi Reddy v. State of A.P .^[1] ” . In the above said decision the Apex Court while dealing with the issue of reliability of dying declarations, has observed that when there are material contradictions between two dying declaration pertaining to the context in which the deceased caught fire, the said dying declarations cannot be relied upon.

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In the above said decision, Judicial First Class Magistrate, P.W.12 recorded the Lakshmi Devi’s dying declaration under Ex.P.11 and the S.I of police, P.W.19, went to the hospital and recorded her statement under Ex.P.14. In both the dying declarations she attributed to the appellant and his mother for the cause of her devastating burns. The Apex Court examined the question whether the said version of Lakshmi Devi is credible and reliable, or is there room for entertaining any doubt about the truthfulness of her version and observed that in view of the impossibility of conducting the test on the said version with the touchstone of cross-examination we have to adopt other tests in order to satisfy our judicial conscience that those two dying declarations contain nothing but the truth. In that scrutiny they came across one material contradiction as between the two dying declarations, Exs.P.11 and P.14 regarding the context in which the deceased caught fire, thereby held that the said dying declarations cannot be relied upon and set aside the conviction of the appellant by giving benefit of doubt.

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In “State of Maharashtra v. Sanjay^[2] ” the Apex court refused to rely upon the dying declarations taking into consideration of the contradictions in the dying declarations given by the deceased.

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In “P.Mani v. State of T.N .^[3] ” the Apex Court has held that indisputably conviction can be recorded on the basis of the dying

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declaration alone but therefor the same must be wholly reliable. IN a case where suspicion can be raised as regards the correctness of the dying declaration, the Court before convicting the accused on the basis thereof would look for some corroborative evidence.

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In “Puran Chand v. State of Haryana^[4] ” the Apex Court held that the Court has to examine the dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration and further observed that the Courts are fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests.

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Therefore, in view of the above said decisions, it has to be examined whether the dying declarations recorded by P.Ws.15 and 19 are voluntarily truthful and made in conscious state of mind without being influence by any relatives or by the investigating agency. As already observed above both the dying declarations recorded by P.Ws.15 and 19 were recorded while the deceased was conscious and in fit state of mind and there is nothing in their cross-examination that the said statements recorded by them are result of tutoring or influenced by any of her relatives.

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The next point to be considered is whether the dying declarations given by the deceased are truthful or not; whether the said dying declarations are consistent with each other and whether there are any contradictions in the said two statements.

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The appellant’s counsel has pleaded that there are contradictions in both the statements; as such they cannot be relied upon without corroboration.

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In Ex.P.12 recorded by P.W.15, Judicial First Class Magistrate at 5.45 a.m, the deceased only stated that on the date of incident at 12.00 midnight her husband came in a drunken state and in the early hours at 04.00 while she was sleeping he poured kerosene on her and lit fire, whereas in Ex.P.25 recorded by P.W.19 at 06.00 a.m. she has given very minute details about the acts of the accused, wherein she has stated that on yesterday night i.e. on 22.04.2007 at about 12.00 hours the accused came in drunken condition abused her in filthy language, for that she went to her aunt’s house and hidden there, but her husband came there and abused them in filthy language and beat their doors and brought her to her house and he slept for sometime. Again in the early hours i.e. on 23.04.2007 at about 01.00 hours again he quarreled with her and beat her and at about 04.00 a.m. while she was at her Varanda in front of the house, she was taken by her husband into inside the house with an intention to kill her, he poured kerosene on her and lit fire. She tried to hug him, for that he escaped from the huge by opening the doors. Therefore, the second statement Ex.P.25 was recorded within 15 minutes after recording of Ex.P.12 by the Judicial First Class Magistrate and in Ex.P.25 the deceased has given minute details, which she has not disclosed in her earlier statement, Ex.P.12 recorded by P.W.15, Judicial First Class Magistrate. In Ex.P.12, she has stated that at the time of accused pouring kerosene and lit fire she was sleeping, but in Ex.P.25 she has stated about the accused abusing her at 12.00 midnight and she has gone to the house of Hussain bee and the accused brought her back to his house and again he quarreled with her at 01.00 a.m. and again at 04.00 a.m. while she was at the varanda of their house, she was taken inside the house and poured kerosene and lit fire. Therefore, both the statements are not consistent with each other.

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The said Pattan Hussain Bee was examined as P.W.5 and she has stated that the deceased came to her house at about 04.00 a.m.

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stating that she was having stomach-ache and again went back to her house, thereafter she learnt through the villagers that the deceased set fire to her body due to stomach-ache. Therefore, P.W.5 has not supported the version of the deceased with regard to her going to the house of P.W.5 and accused taken her back from the said house on that night. Moreover, according to P.Ws.1 and 2, who are the mother and father of the deceased; the deceased has disclosed about the said quarrel took place between them at 12.00 midnight and she has gone to the neighbours house by name Pattan Khasim Peera, but the said Pattan Khasim Peera even though cited as witness, he was not examined by the prosecution and the said version of P.Ws.1 and 2 is contrary to the dying declarations given by the deceased. Moreover, P.W.1, mother of the deceased in her cross-examination has admitted that from the time of marriage, her daughter was coming to their house whenever the accused consumes liquor, thereafter the accused came to their house and takes her back and her deceased daughter threatened the accused twice previously that she would pour kerosene and set herself on fire. She further admitted that her daughter tried to pour kerosene and set her on fire even in their house.

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P.W.2, father of the deceased, also admitted in his crossexamination that his deceased daughter was threatening the accused to commit suicide and whenever she came to their house the accused used to come to their house and take her back and some times when his daughter came to their house, the accused waits outside the house and took her on the next day morning to his house and twice or thrice his daughter informed them that she poured kerosene and threatened the accused. Therefore, from the above admissions made by P.Ws.1 and 2, who are parents of the deceased, it is clear that the deceased was in the habit of coming to her parents’ house whenever the accused consumed liquor and accused used to come to their house and take her along with him and she used to threaten the accused that she will pour kerosene on herself to commit suicide. According to

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P.W.1, she has poured kerosene and tried to set fire even in their house. Therefore, from the above the deceased has got the tendency to commit suicide and she used to threaten the accused that she will commit suicide and the conduct of the accused in brining back the deceased from her parents’ house does not disclose any harassment by him towards her. Therefore, in the above circumstances and in view of the contradictions in two dying declarations i.e. Exs.P.12 and P.25, the truthfulness of the said statements has to be doubted. As such basing on the said contradictory dying declarations of the deceased conviction cannot be sustained. Thus, the conviction recorded by the trial Court basing on the dying declarations of the deceased is liable to be set aside.

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In the result, the Criminal Appeal is allowed. The conviction and sentence passed in S.C.No.262 of 2007 on 21.07.2008 by the VII Additional District and Sessions Judge, Ongole, FAC-

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V Additional District and Sessions Judge, Ongole, against the appellant-accused, for the offence punishable under Section 302 IPC is hereby set aside. The appellant-accused is acquitted for the said charge and he shall be set at liberty forthwith, if he is not required in any other case.

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_______________________ JUSTICE N.V.RAMANA

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_____________________________ JUSTICE P. DURGA PRASAD

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Date:09-07-2012 Ksp

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[1] (1999) 7 Supreme Court Cases 69

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[2] (2004) 13 Supreme Court Cases 314

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