Dismissed

Medi Krishna, (A1) v. The State of A.P.

Telangana HC12 Jul 2012CRLA/1018/2008

Case brief

AI extract

What is this about?

This appeal challenged a lower court's conviction and life sentence for murder under Section 302 read with 34 IPC. The Supreme Court examined the reliability of dying declarations and the role of corroboration, ultimately upholding the conviction based on consistent accounts from the deceased and physical evidence.

What did the court decide?

The appeal was dismissed, and the conviction and sentence of life imprisonment and fine were confirmed.

Medi Krishna, (A1) Vs The State of A.P. — Murder and Culpable Homicide | Telangana HC (2012)

¶1

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

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Crl.A.No.1018 of 2008

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

¶4

This appeal is directed against the conviction and sentence passed in S.C.No.447 of 2007 by the III Additional Metropolitan Sessions Judge, Hyderabad on 20.06.2008.

¶5

The appellant herein, who is accused No.1, along with three others were prosecuted for the offence under Section 302 read with 34 IPC.

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According to the prosecution deceased No.1 M.Mysing Rao is resident of Asmangadh, Malakpet and working as a Cashier, Pension Office at Secunderabad. A.1 is his younger brother. Deceased No.2, Smt.Gayatri is the wife of deceased No.1. On 11.05.2007 the accused was involved in a Criminal Case that occurred at Champapet in Saroornagar police station and a case in Crime No.530 of 2007 under Sections 324 and 427 IPC. Since then the accused started demanding the deceased No.1 to get bail for him, as the deceased No.1 was on medical leave due to ill-health informed A.1 that he will get bail for him after recovery from his ailment. But A.1 could not control himself on 17.05.2007 night A.1 along with A.2 to A.4 formed themselves into a group with common intention and in pursuance of their common intention A.1 carried kerosene tin with match box and went along with the other accused to the house of the deceased No.1 and while deceased Nos.1 and 2 sitting outside of their house, A.1 poured kerosene on them with an intention to end their lives and later thrown a burning match stick, as a result of which deceased No.1 and 2 succumbed to burn injuries and died while undergoing treatment in Osmania General Hospital. A.2 to A.4 beat the deceased No.2 with hands and caught hold of her plait. Thus, A.1 to A.4 are liable for punishment under Section 302 read with 34 IPC.

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The learned Sessions Judge has framed the charge under Section 302 IPC against A.1, under Section 302 read with 34 IPC against A.2 to A.4 and they 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 17 and got marked Exs.P.1 to P.21 and M.Os.1 to 4. D.W.1 was examined on behalf of the accused in defence and no documents were marked on their behalf.

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The learned Sessions Judge by taking into consideration of the said oral and documentary evidence found A.1 guilty for the offence under Section 302 IPC for two counts and convicted and sentenced him to undergo imprisonment for life and also to pay fine of Rs.2,500/- for each count (in total Rs.5,000/-). A.2 to A.4 were found not guilty for the charge under Section 302 read with 34 IPC.

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Aggrieved by the said conviction and sentence, A.1 has filed the present appeal.

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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 A.1 beyond reasonable doubt? P O I N T:

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The appellant’s counsel has pleaded that there is no evidence on record except dying declarations said to have been recorded by P.W.10 and P.W.12 and there are variations in the dying declarations recorded by P.W.10 and P.W.12 and even though the dying declaration was recorded by P.W.10 prior to the statement recorded by P.W.12, no F.I.R. was issued, as such the dying declarations cannot be relied upon. She further pleaded that the dying declarations cannot be relied upon without corroboration.

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The Additional Public Prosecutor on the other hand has pleaded that even though all the witnesses turned hostile to the prosecution, dying

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declarations recorded by P.W.10 and the statements recorded by P.W.12 and P.W.13 are sufficient to convict the accused and the trial Court has rightly convicted the accused and the said conviction and sentence does not warrant any interference by this Court in the appeal.

¶16

According to the prosecution A.1 was involved in Crime No.530 of 2007 under Sections 324 and 427 IPC of Sarrornagar police station and he sought deceased No.1 to get him released on bail and as he was sick, he told him that he will get him released on bail subsequent to his recovery, but A.1 could not control himself and on 17.05.2007 night A.1 along with A.2 to A.4 went to the house of deceased No.1 and poured kerosene on both the deceased while they were sitting outside the house. After their admission in the hospital, P.W.10, Judicial First Class Magistrate, has recorded the statements of both the deceased and subsequently P.W.12, Head Constable, also recorded the statement of deceased No.1 and issued the F.I.R. During the course of investigation, P.W.13, S.I of police, recorded the statement of deceased No.2 under Section 161 Cr.P.C. The trial Court basing on the said dying declarations convicted A.1.

¶17

Prosecution examined P.Ws.1 to 5. P.W.1 is the son of the deceased. P.W.2 is the daughter of the deceased. P.W.3 is another son of the deceased. P.W.6 is another son of the deceased. All of them have turned hostile to the prosecution. P.Ws.4 and 5, who are said to be the independent witnesses also not supported the case of the prosecution. Even the mediator, P.W.6, for holding inquest over the dead bodies of deceased Nos.1 and 2 also turned hostile.

¶18

The only evidence available on record is the evidence of P.W.7, mediator for the scene of offence and seizure of material objects from the scene of offence, P.W.10, Judicial First Class Magistrate, who recorded the dying declarations of deceased Nos.1 and 2, P.W.12, Head Constable, who recorded the dying declaration of

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deceased No.1, P.W.13, S.I of police, who recorded the 161 Cr.P.C. statement of deceased No.2, P.Ws.14 and 15, doctors, who conducted autopsy over the dead bodies of deceased Nos.1 and 2 and P.W.17 is C.I of police, who investigated the case.

¶20

P.W.10, Judicial First Class Magistrate, has stated that he has received the requisition from S.H.O, Malakpet police station, and proceeded to the Osmania General Hospital on 17.05.2007 at 1.30 p.m. and recorded the dying declarations of deceased Nos.1 and 2, which were marked as Exs.P.10 and P.11.

¶21

In Ex.P.10, deceased No.1 has stated that he sat outside the house at about 1.00 a.m. in the night due to ill-health, then his wife Gayathri and his brother M.Krishna were quarrelling and abusing each other, then he asked his brother, why they are quarrelling, then his brother, his brother’s wife Lakshmi Bai, his brother’s son Sai Shiva Kumar and Kumar, son of his sister-in-law Lakshmi Bai’s sister, came to his house and his brother Krishna poured kerosene on him and his wife Gayathri and lit with the match stick. Then himself and his wife came to Malakpet police station and the police have joined them in the hospital. His brother Krishna regularly used to abuse him and his wife in drunken state and he works as Head Constable at Amberpet police station.

¶22

In Ex.P.11, deceased No.2, has stated that her brother-in-law poured kerosene on her and her husband and lit with match stick, when they were in flames they escaped. According to her, three days back, when herself and her brother-in-law’s family went to the marriage function of Ravi, son of Vijaya, who is her sister-in-law at Champapet, there was a quarrel between her younger uncle’s son Tulsidas and her brother-inlaw, Krishna and a case was booked with regard to that incident and he asked her husband to give money for him for the surety. Then herself and her husband told him that her husband is not well. Later, on that night, her brother-in-law Krishna, her brother-in-law’s wife Lakshmibai, her brother-

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in-law’s son Sai Shiva Kumar, son of Lakshmibai’s sister Kumar came and quarreled with them and poured kerosene on them and lit with match stick. Later, herself and her husband and her brother came to the police station and from there, they admitted in the hospital.

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Therefore, both deceased Nos.1 and 2 have specifically stated about the accused No.1 pouring kerosene on them and lit fire to them, but deceased No.1 has given a different reason for the accused pouring kerosene and litting fire to them and deceased No.2 has given different reason for the accused pouring kerosene and litting fire to them.

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P.W.12, Head Constable, has stated that on receipt of telephonic information from Osmania General Hospital, Hyderabad about the admission of Misinga Rao and his wife, with burn injuries, he proceeded to the hospital and recorded the statement of deceased No.1, which is marked as Ex.P.12. In Ex.P.12, deceased No.1 has stated that a quarrel took place at Champapet and a case was registered against his brother Krishna. On 17.05.2007 at about 1.35 a.m. he along with his wife Gayatri, his son Gopi, his daughter Chitti, sat outside of their house for open air after completion of their dinner, his brother, his wife Lakshmi Bai, his son Sai Shiva Kumar and Kumar, came there, and his brother Krishna demanded to give him surety and he replied that he will give him surety after joining duty as he was on sick leave. Then his brother Krishna opened the kerosene tin holding in his hand, poured kerosene on him and his wife and shouted that they do not have right to live. Then the wife of Krishna, and his son and Kumar caught hold the hair of himself and his wife and beaten them and Krishna lit the match stick and thrown it on them. Himself and his wife started shouting in flames and the accused escaped from that place by shouting “you should die.” Thereafter, P.W.13, S.I of police, has received Ex.P.12 on the point of jurisdiction and registered the case in Crime No.156 of 2007 under Section 302 IPC. During the course of investigation, he visited the Osmania General Hospital and recorded the statement of deceased No.2, which is marked

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as Ex.P.14. In Ex.P.14, deceased No.2 has stated the same facts as mentioned in Ex.P.11 recorded by P.W.10.

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P.Ws.14 and 15, doctors, who conducted autopsy over the dead bodies of the deceased Nos.1 and 2 respectively, opined that both the deceased died due to burns.

¶28

P.W.7, mediator for the scene of offence, has stated that on 17.05.2007 when he was at the house of deceased police observed the scene of offence and seized the kerosene tin and one match box under cover of observation panchanama. Himself and other panch witnesses attested the scene of offence observation panchanama, Ex.P.7. He identified M.O.1 is the plastic kerosene tin and M.O.2 is match box seized under cover of Ex.P.7. In the cross-examination he has stated that he did not know the contents of Ex.P.7, but while drafting the same, the S.I of police explained them in Telugu.

¶29

Investigating officer, P.W.13, has stated about his conducting scene of offence observation panchanama, Ex.P.7, in the presence of P.W.7 and another and recovery of M.Os.1 and 2. Thus, from the evidence of P.Ws.13 and 7 the prosecution could able to establish that recovery of M.Os.1 and 2 from the scene of offence.

¶30

To connect the accused with the commission of offence, the prosecution has relied upon the dying declarations recorded by P.W.10 and the statements recorded by P.Ws.12 and 13. The investigating officer, P.W.17, also recorded the statement of deceased No.2 on 27.05.2007, which is marked as Ex.P.18. In the dying declaration Ex.P.11 recorded by P.W.10 and in 161 Cr.P.C. statement, Ex.P.14 recorded by P.W.13, and in the another 161 Cr.P.C. statement, Ex.P.18 recorded by P.W.17, deceased No.2 categorically stated about the reason for the accused pouring kerosene and set fire to them as he demanded her husband-deceased No.1 to get him release on bail in a crime, and as her husband was sick he has stated that he will get him released on bail after

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joining duty. But the deceased No.1 in Ex.P.10 recorded by P.W.10 has given a different version with regard to the reason for the accused pouring kerosene on them. Ex.P.12, statement of deceased No.1, recorded by P.W.12, has supported the version of deceased No.2. In all the statements given by deceased Nos.1 and 2 they are consistent with regard to accused pouring kerosene on them and litting fire with a match stick.

¶32

The appellant’s counsel has pleaded that the Judicial First Class Magistrate, P.W.10, has recorded the dying declaration of deceased No.1 on 17.05.2007 at 1.30 p.m., whereas P.W.12 has recorded the statement of deceased No.1 under Ex.P.12 at 02.55 p.m. and P.W.13 has registered the crime basing on the statement recorded by P.W.12 on 17.05.2007 at 4.00 p.m., thus there is delay in registering the case by the investigating agency even though the

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1^st statement of deceased No.1 was recorded by P.W.10 and no reasons were given by the investigating agency for the delay in registering the case after recording the statement of deceased No.1.

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P.W.10 has recorded the statement of deceased No.1 under Ex.P.10 on 17.05.2007 between 1.30 p.m. and 2.05 p.m., whereas P.W.12 has recorded the Ex.P.12, statement of deceased No.1 on 17.05.2007 at 02.55 p.m. and P.W.13 issued the F.I.R basing on the said Ex.P.12 on 17.05.2007 at 4.00 p.m. P.W.12 has stated that after recording Ex.P.12, he returned to police station and handed over the same S.I of police, who was on duty. P.W.13 has stated that on 17.05.2007 while he was on duty at Malakpet police station, P.W.12 returned from Osmania General Hospital, Hyderabad and handed over Ex.P.12 statement, and basing on which he registered a case in Crime No.156 of 2007 under Section 307 IPC and issued the Ex.P.13, F.I.R. Thus, from the evidence of P.Ws.12 and 13, it is evident that P.W12, Head Constable of Malakpet police station has gone to the Osmania General Hospital on receipt of telephonic message and thereafter he recorded the statement of

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deceased No.1 at 2.55 p.m. and returned back to the police station at 04.00 p.m. and handed over the same to P.W.13, S.I of police and P.W.13 immediately registered the case basing on the said Ex.P.12 and issued the F.I.R. Therefore, the delay of one hour from recording the statement of deceased No.1 and issuing the F.I.R. cannot be said to be a delay on the part of the police in registering the case as P.W.12 has to return back from Osmania General Hospital to Malakpet police station after recording the statement of the deceased No.1.

¶36

The appellant’s counsel has pleaded that in Exs.P.10 and P.11, declarations recorded by P.W.10, both the deceased stated that they came to Malakpet police station and they were admitted in the hospital; when they came to the police station, police might have recorded the statement of deceased and issued the F.I.R and non-registering of the case creates a doubt with regard to their giving statements in the hospital on that day. But no suggestion was put either to P.W.12 or P.W.13, who were said to be present in the Malapet police station on that day about the visit of deceased Nos.1 and 2 to the police station prior to going to the hospital.

¶37

According to P.W.2, who is the daughter of the deceased, on the date of incident at about 1.00 a.m. on hearing cries, she woke up and noticed her parents in the midst of burning flames on the pial in front of their house, then she along with her brother Vijayarama Rao, who is examined as P.W.3, with the help of water and blanket put off the flames and on receiving their telephone call, their maternal uncle came and shifted her parents to Osmania General Hospital, Hyderabad for treatment. P.W.3 also supported the version of P.W.2 with regard to shifting of their parents to Osmania General Hospital for treatment and no suggestion was put to them about their going to the police station along with deceased Nos.1 and 2 before admitting them in the Osmania General Hospital. Therefore, a stray sentence in dying declarations of deceased Nos.1 and 2 that they came to Malakpet police station and

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thereafter admitted in the Osmania General Hospital can not be given much importance and on that ground the entire statements of deceased Nos.1 and 2 cannot be discarded.

¶39

The appellant’s counsel has pleaded that the dying declarations cannot be relied upon without any corroboration. In support of her contention, she relied upon a decision in “Ram Nath Madhoprasad and others v. State of M.P .^[1] ” . In the above said decision in the dying declaration for the question “who assaulted you”, the deceased has stated that “Purshotham, Pratap, Mamaji and Hanna Ahir shot him by means of a pistol” and the Magistrate in his evidence made it clear that it was “a pistol” with which these four persons were stated to have fired at Sunder. The High Court has found that Sunder made some mistake in answering the question and held that in case of a dying declaration where the exact words stated by a deceased matter and are of importance, a suggestion of the kind that the deceased might have said something by a mistake cannot be entertained. The Apex Court held that the High Court was in error in basing the conviction of the appellants much on the uncorroborated dying declaration of the deceased recorded by the Magistrate and which was not only vague but which admittedly did not at all events represent the whole truth and further held that the dying declarations cannot be relied upon without corroboration.

¶40

In “Nallapati Sivaiah v. SD O^[2] ” the Apex Court held that it is unsafe to record conviction on basis of a dying declaration alone in cases where suspicion is raised with regard to correctness of dying declaration.

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In “Sharda v. State of Rajasthan^[3] ” the Apex Court has held that it is not an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated and the rule requiring corroboration is merely a rule of prudence.

¶42

In “Bhajju Alias Karan Singh v. State of Madhya Pradesh^[4] ” the Apex Court has held that the declaration was true and voluntary, it undoubtedly can base its conviction on the dying declaration, without requiring any further corroboration.

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Therefore, in view of the above said decisions it is clear that if there is a suspicion with regard to the correctness of the dying declarations, then only corroboration is required, but not in all cases. In the present case, as already observed above, Ex.P.10, dying declaration of the deceased No.1 recorded by P.W.10, Ex.P.12 recorded by P.W.12 even though there is a variance with regard to the reason for A.1 committing the offence by pouring kerosene on himself and on his wife and setting fire to them, both statements are consistent with regard to A.1 pouring kerosene and litting fire to them. Deceased No.2 in Ex.P.11 recorded by P.W.10 and her 161 Cr.P.C. statement, Ex.P.14 recorded by P.W.13, and her another statement Ex.P.18 recorded by P.W.17, categorically stated about the reasons for the accused to commit the offence and also specifically stated about the accused pouring kerosene on them and setting fire to them with a match stick. Therefore, a reading of the dying declarations clearly establishes that the appellant-A.1 has poured kerosene on both the deceased and set fire to them. Even if the dying declaration and the statement of the deceased No.1 are discarded on the ground that they are not consistent with regard to the reason for A.1 to commit the offence, the dying declaration and statement of deceased No.2 is consistent in all respects and they can be relied upon.

¶44

From the evidence of the doctors, P.Ws.14 and 15, it is established that both the deceased died due to burn injuries. The recovery of Kerosene tin and match stick, M.Os.1 and 2, from the scene of offence under Ex.P.7 is established from the evidence of investigating officer, P.W.13, and the mediator, P.W.7. Thus, the prosecution could able to establish that A.1 has caused the death of both the deceased by causing

¶45

burn injuries to them by setting them on fire.

¶46

In defence the accused examined D.W.1, the elder brother of the deceased, who has stated that P.W.1 informed him that his parents themselves set ablaze, but the evidence of D.W.1 cannot be relied upon as he is not residing near the house of the deceased and he is not an eyewitness for the same. Thus, the trial Court has rightly convicted the appellant – A.1 for the offence under Section 302 IPC and said finding recorded by the trial Court does not warrant any interference by this Court in the appeal.

¶47

In the result, the appeal is dismissed. The conviction and sentence passed in S.C.No.447 of 2007 on 20.06.2008 by the

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III Additional Metropolitan Sessions Judge, Hyderabad against the appellant – A.1 is hereby confirmed.

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_______________________ JUSTICE N.V.RAMANA

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_____________________________ JUSTICE P. DURGA PRASAD Date:12-07-2012 Ksp

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[1] AIR 1953 Supreme Court 420 (1)

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[2] (2007) 15 SCC 465

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[3] (2010) 2 Supreme Court Cases 85

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[4] (2012) 4 Supreme Court Cases 327

Medi Krishna, (A1) v. The State of A.P.

Case brief

What is this about?

What did the court decide?

Medi Krishna, (A1) v. The State of A.P.

Case brief

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What did the court decide?

What the court decided

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