Dismissed

Shaik Adam Shafi, v. State

Telangana HC30 Oct 2012CRLA/1456/2008

Case brief

AI extract

What is this about?

The appeal against a life sentence for murder was dismissed. The court held that consistent dying declarations by the deceased, recorded while she was in a fit state of mind over a month after the incident, were sufficient to sustain the conviction under Section 302 IPC without further corroboration.

What did the court decide?

Criminal appeal dismissed and the conviction and sentence of life imprisonment confirmed.

Shaik Adam Shafi, Vs State — Murder and Culpable Homicide | Telangana HC (2012)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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PRESENT : :

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THE HON’BLE SRI JUSTICE N.V.RAMANA AND

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THE HON’BLE SRI JUSTICE P. DURGA PRASAD

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CRIMINAL APPEAL No.1456 of 2008

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Dated: 30-10-2012

Between:

Shaik Adam Shafi

….Appellant

And

The State of A.P., Rep. by Public Prosecutor, High Court, Hyderabad and another.

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….Respondents

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The Court made the following:

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THE HON’BLE SRI JUSTICE N.V.RAMANA AND

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THE HON’BLE SRI JUSTICE P. DURGA PRASAD

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CRIMINAL APPEAL No.1456 of 2008

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JUDGMENT: (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.652 of 2007 by the I Additional Sessions Judge, Guntur on 08.09.2008.

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The appellant herein is the sole accused and he was prosecuted for the offence under Section 302 of the Indian Penal Code, 1860 (for short

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“IPC”).

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According to the prosecution, the accused married the deceased Shaik Mallika about ten years back and they were blessed with two children. The accused addicted to alcohol and avoided to do the coolie works and was depending upon the earnings of the deceased. On the night of 27.05.2007 at 7.00 p.m. a wordy quarrel took place between the deceased and the accused in connection with the payment of cash of Rs.50/-. The accused demanded her to give Rs.50/- for consuming alcohol and the deceased refused to give the same. Thereupon the accused poured kerosene over her body and set fire with kerosene lamp. When the deceased raised alarm and ran out of the house, the accused escaped from that place without making any attempt to extinguish the flames but the neighbourers PW.6 and others responded to the alarm, rushed to the spot and extinguished the flames and shifted her to PW.5, the private medical practitioner and after getting first aid she was shifted to the District Hospital, Tenali. PW.13 on receipt of the hospital intimation, proceeded to the hospital and recorded the statement of the deceased at 10.00 p.m. and forwarded the same to SHO, Duggirala police station on the point of jurisdiction. Thereafter, PW.12 on receipt of the hospital intimation recorded the dying declaration of the deceased. PW.16, the Sub-Inspector of police having received the statement of the deceased recorded by PW.13, has registered the case in Cr.No.65 of 2007 under Section 307 of IPC and visited the scene of offence and conducted the scene of offence panchanama in the presence of PW.8 and another and recorded statements of the witnesses, arrested the accused on 31.05.2007 and sent him to judicial custody. On receipt of the death intimation given by PW.10, the Section of law was altered to 302 of IPC by PW.15 and PW.16 took up the further investigation and held inquest over the dead body of the deceased and sent the dead body for post mortem examination. The doctor, PW.11, who conducted autopsy over the dead body of the deceased, opined that the deceased died due to 40% to 50% of burns and after completion of the investigation, filed the charge sheet

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against the accused.

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The Sessions Judge has framed the charges under Section 302 of IPC against the accused and the accused pleaded not guilty for the said charge.

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The prosecution in order to establish the said charge examined P.Ws.1 to 16 and got marked Exs.P-1 to P-17 and MOs.1 to 3. No oral or documentary evidence was adduced on behalf of the accused in defence.

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Taking into consideration of said oral and documentary evidence, the Sessions Judge found the accused guilty for the charge under Section 302 of IPC and convicted and sentenced him to suffer imprisonment for life.

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

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Now the point that arises for consideration is whether the prosecution could able to establish the charge under Section 302 of IPC against the accused beyond reasonable doubt?

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POINT:

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The appellant’s counsel has pleaded that none of the witnesses examined by the prosecution has supported the case of the prosecution and the trial Court has mainly relied upon the dying declarations recorded by PWs.12 and 13 and the said dying declarations are inconsistent with each other and they are brought into existence after tutoring, as such they cannot be relied upon for convicting the accused.

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The Additional Public Prosecutor, on the other hand, has pleaded that in the dying declarations recorded by PWs.12 and 13, the deceased has specifically stated about the accused pouring kerosene and setting fire to her and the said dying declarations are consistent and as such they can be relied upon and the trial Court has rightly convicted the accused for the

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charge under Section 302 of IPC.

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The case of the prosecution is that on the night of 27.05.2007 at 7.00 p.m. a wordy quarrel took place between the deceased and the accused in connection with the payment of cash of Rs.50/- for consuming alcohol and when the deceased refused to give the same the accused poured kerosene over her body and set fire with kerosene lamp and ran away from that place and the deceased was admitted to the hospital by the neighbourers PW.6 and others after extinguishing the fire.

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The prosecution examined the brother of the deceased as PW.1, mother of the deceased as PW.2 and brother of the accused as PW.3, a locality person as PW.4 and neighbourers as PWs.6 and 7 and none of them have supported the case of the prosecution and PWs.1 to 4 have stated that the deceased herself disclosed to them that she committed suicide by pouring kerosene. PW.5, who is the private medical practitioner to whom the deceased was brought at the first instance, has admitted about the deceased being brought to him in an auto with burn injuries but he did not speak anything about the treatment given to her. All the above witnesses i.e. PWs.1 to 7 have admitted that the deceased sustained burn injuries. PW.9, the mediator for the inquest also stated about conducting of inquest over the dead body of the deceased and opined that the deceased died due to burn injuries. The doctor, PW.11, who conducted autopsy over the dead body of the deceased, opined that the deceased died due to 40% to 50% burn injuries with secondary infection and septicemia. Therefore, it is established that the deceased died due to burn injuries.

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The next point to be considered is who caused those burn injuries to the deceased.

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The prosecution has relied upon the dying declaration recorded by PW.12 and statement recorded by PW.13, the ASI of police. PW.12, the Judicial First Class Magistrate stated that he went to the hospital, on 27.05.2007 on receipt of the hospital intimation at 10.30 p.m. and recorded the dying declaration of the deceased and according to him Ex.P-13 is the

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dying declaration recorded by him and in the cross-examination he has stated that the patient was in the casualty and by the time he went to the hospital none were present there with the patient and the doctor present there identified the patient but the said fact was not mentioned in Ex.P-13. PW.13, the ASI of police has stated that he has received intimation from the hospital with regard to the admission of the patient by name Mallika in Government hospital, Tenali with burn injuries and immediately went to the Government hospital, Tenali and recorded the statement of the said Mallika and Ex.P-2 is the said intimation and Ex.P-14 is the statement recorded by him. According to him, he sent both Ex.P-2 and P-14 to Duggirala police station on the point of jurisdiction. In the crossexamination he has stated that except the duty doctor, none were present with the victim, when he was recording the statement. He obtained the certificate of the doctor with regard to the fitness of the patient to give the statement and he denied the suggestion that the patient Mallika was not in a fit condition to give the statement. PW.16 is the Sub-Inspector of police, who has issued the FIR Ex.P-16 basing on the statement recorded by PW.13. In dying declaration Ex.P-13 recorded by PW.12, the deceased has stated that when the accused asked for Rs.50/- she said no, and poured kerosene and set fire to her and for the question, who has poured kerosene, she has stated that ‘aayana’ i.e. her husband. In the statement Ex.P-14 recorded by PW.13, she has categorically stated that “on that night at about 7.00 hours when she was in the house, her husband asked her to give Rs.50/- and she stated that she has no money. He asked to bring the money from anywhere and give it, then she said that from where she has to bring and give it, for that he beat with his hands twice on her back and she questioned him why he is beating, for which the accused poured kerosene on her body and set fire with a kerosene lamp, which was available nearby. When she raised cries, the neighbourers came and extinguished the fire and took her to the hospital of PW.5 and thereafter shifted to the Government Hospital, Tenali”. Therefore, in both the statements Exs.P-13 and P-14, the deceased has categorically stated that the accused poured kerosene and set fire to her when she refused to give

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Rs.50/- as demanded by the accused. Thus, both the statements are consistent with each other with regard to the cause of death of the deceased. In

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Ex.P-13, the doctor has certified that the patient was conscious, coherent and mentally in a fit condition to give the statement and the Magistrate is also by putting preliminary questions satisfied by himself about the consciousness and coherence of the patent at the time of recording of the statement. In Ex.P-13, there is no certification of the doctor about the fit condition of the patient at the time of recording of the statement. Ex.P-13 was recorded on 27.05.2007 between 10.45 p.m. and 10.55 p.m., whereas Ex.P-14 was recorded between 11.15 p.m. and 11.45 p.m. on 27.05.2007. Thus, Ex.P-14 was recorded immediately after recording of the dying declaration by the Magistrate Ex.P-13.

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According to PW.10, the doctor, who treated the deceased, has stated that on 10.07.2007 at 5.45 a.m. he noticed that the deceased died while undergoing treatment and thereafter he gave death intimation to the police, whereas the incident has taken place on 27.05.2007 at 7.00 p.m. Therefore, the deceased died nearly after one and half months of the incident due to burn injuries. Therefore, as on the date of recording of the statement, the condition of the deceased was not precarious, as such it cannot be said that the patient was not in a fit state of mind at the time of recording the statements by PWs.12 and 13.

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In Ongole Ravikanth v. State of Andhra Pradesh^[1] , the Apex Court

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held that “the dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering weight to be given to the dying declaration inasmuch as there could be any number of circumstances, which may affect the truth”. It further observed that “the Courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the Courts to find that the deceased was in a fit state of mind to make the dying declaration”.

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In Munnawar and others v. State of Uttar Pradesh and others^[2] , the Apex Court has observed that. “the deceased remained alive for a long period of time after the incident and died several days later of septicaemia, clearly shows that his condition was not overly critical or precarious when dying declaration was recorded”.

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In Atbir v. Government of NCT of Delh i^[3] , the Apex Court has summarized the principles laid down by it in the earlier decisions and as per its decision the following principles are culled out from the earlier decisions:

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i. Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.

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ii. The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

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iii. Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

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iv. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

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v. Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

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vi. A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

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vii. Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

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viii. Even if it is a brief statement, it is not to be discarded. ix. When the eye witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

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x. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.

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In Bajju Alias Karan Singh v. State of Madhya Pradesh^[4] , the

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Apex Court held that “the conviction can be based solely on the dying

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declaration without any corroboration”.

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Therefore, in view of the above said decisions, the dying declarations can be the sole basis for the conviction but it must be voluntarily and not a result of tutoring and at the time of recording of the dying declaration, the patient was in a fit state of mind to give the statement. As already discussed above, PWs.12 and 13 have specifically stated that none were present at the time of recording of the statement of the patient and there is no evidence on record to show that any other person was present at the time of recording of the statement or prior to recording of the statement by PWs.12 and 13. Moreover, the doctor, who was present at the time of recording of dying declaration by PW.12, has certified about the fit state of mind and consciousness of the patient to give the statement and immediately thereafter PW.13 has recorded the statement of the deceased. As already discussed above, the deceased died after more than one and half months of the incident and that itself shows that the patient was not in a critical condition at the time of recording of the dying declaration and she was in a fit state of mind. Moreover, the dying declaration Ex.P-13 recorded by PW.12 and the statement Ex.P-14 recorded by PW.13 are consistent with regard to the cause of death of the deceased. Thus, Exs.P-13 and P-14 can be relied upon to convict the accused and from the above, it is evident that the accused poured kerosene and set fire to her. Hence, the trial Court has rightly convicted the accused for the charge under Section 302 of IPC basing on the dying declaration Ex.P-13 and statement Exs.P-14 recorded by PWs.12 and 13 respectively and the said finding of the trial Court does not warrant any interference by this Court in this appeal.

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In the result, the Criminal Appeal is dismissed and the conviction and sentence passed in S.C.No.652 of 2007 by the I Additional Sessions Judge, Guntur on 08.09.2008 for the offence under Section 302 of IPC, is hereby confirmed.

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__________________ JUSTICE N.V.RAMANA

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______________________ JUSTICE P. DURGA PRASAD Date: 30-10-2012 MR

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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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CRIMINAL APPEAL No.1456 of 2008

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Date: 30-10-2012

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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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+ CRIMINAL APPEAL NO. 1027 OF 2008

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% 28-08-2012 # 1. Ramakuri Nageswara Rao, S/o Anjaneyulu @ Anjaiah, Aged 30 years, Nagarajupalli village, Martur Mandal, Prakasam District. … Appellant Vs. $ 1. The State of A.P., rep. by Public Prosecutor … Respondent ! Counsel for the Appellant: Sri K.Suresh Reddy, Advocate. Counsel for the Respondent: Public Prosecutor < Gist:

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> Head Note:

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? Cases referred:

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1. (2010) 5 SCC 451

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2. 1994 Supp (1) SCC 534

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3. AIR 2003 SC 209

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4. 1995-SCC-3-831