A husband's conviction for burning his wife was upheld. The court accepted her dying declaration despite the absence of medical certification or recording by a Magistrate, and rejected an unsupported alibi. The appeal was dismissed, the life sentence confirmed, bail bonds cancelled and immediate surrender directed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Bail Slip: The Accused released on bail order dated. 05-07-2017 in Crl.M.P.no.13790 of 2017 in CRLA 1157 of 2012 on the file of High court,
IN THE HIGH COURT FOR THE STATE OF TELANGANA
TUESDAY ,THE TWENTY SECOND DAY OF OCTOBER TWO THOUSAND AND NINETEEN
PRESENT
HONOURABLE THE CHIEF JUSTICE RAGHVENDRA SINGH CHAUHAN
THE HONOURABLE SRI JUSTICE A.ABHISHEK REDDY
CRIMINAL APPEAL NO: 1157 OF 20'12
Between:
...Appellant/Accused
AND
...Respodents/Complaiant
Appeal under Section 37aQ) of Cr.P.C praying that the High Court may be pleased to present this [\4emorandum of Criminal Appeal against Conviction and sentence awarded in SC.No.178 of 2011 on the file of the Sessions Judge, Adilabad, District. preferred against the order dated. 13.04.2011 in PRC 56 of 2010 in Cr.No. 4212010 of Police Station Kuntal on the before of the Judicial First Class lVagistrate, Bhainsa, adilabad District.
\Counsel for the Appellant(s):SR. A GAYATRI REDDY )D1_ Counsel for the Respondents:PUBLIC PROSECUTOR (TG)
The Court made the following: ORDER
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JUDGMENI: (t' :r the Hon'ble Sri Justice A.Abhishek Reddv)
Having been convicted for offence under Section I)02 IPC, and sentenced to lih: imprisonment, directed to pay a fine ri Rs.200 l-, and to further sullbr simple imprisonment for one mDnth in delault thereof, byjr.rclgment dated 04.04.2012 on the file of ,he Sessions Judge at AdilaL,ad, the accused, Thummala Sayanna has approached this Court.
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her saging that he would hang her to fan and went into the house, brought kerosene tin, poured kerosene on her saree and lit ftre, as a result, her legs, thighs u.tere bntnt. Immediately, they summed 108 ambulonce, brought to Gout. Hospital, Bhainsa and admitted for treatment."
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the matter and :-aised the following contentions:
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are no inconsistencies in the statements of PWs. 1 to 4. Thus, the learned trial Court has rightly appreciated the evidence on record and concluded that the accused vr,as guilty of the offence under Section 302 IPC while acquitting him for the offence under Section 498A lPC. Therefore, there is no contra evidence for this Court to interfere with the conviction rendered on the accused.
B) It is seen from the record, that PWs I to 4 are the relatives of the deceased, who visited the deceased in the hospital and to whom the deceased confided that the accused poured kerosene on her and set fire to her. PWs 5 and 6 are the panch witnesses for seizure panchanama, PW-7 is the witness for inquest panchanama, PW-8 is the doctor, who treated the deceased in Government Hospital, Bhainsa. PW-9 is the invcstigating officer, u ho registered the crime and recorded the dying declaration of the deceased. PW- 10 is another investigating officer who filed charge sheet after completing the investigation.
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evidence by lir-rl<:ing all the circumstances, which cor:rpk:te the chain of events and p,.rint out the guilt of the accused.
Supreme Cor-rrt lras held as follows:-
(1) Ihe circumstances from which an inferen<e o' guilt is sought to t)e drawn, must be cogently and lirmly established
(2) Ihose circumstances should be of a defi:ite tendency unerringlv :rointing towards guilt of the accused;
(3)'l:e circumstances, taken cumulatively, slroulc form a chain so c:mplete that there is no escape from the conclur;ion thaL within all l. -rman probability the crime was committed b\ the accused and none e lse; and
(41 lhe circumstantial evidence in order to sust.r.n c(,n,iction must be :cmplete and incapable of explanation c, ilry other h1'pothesis tl.ran that of the guilt of the accused and sLrch evidence should n,r onl\ be consistent lvith the guilt oi the rccused but should be i:.consistcnt \'ith his innocence.
: AIR I990 Suprcmc(lourr T!,
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registered the F.l.R. and investigated the case. From a bare perusal of the depositions of P.Ws.1 to 4, it can be seen that there is consistency in the statements made by the witnesses P.Ws.1 to 4 regarding the marriage ol the deceased and the accused; how the accused used to harass the deceased on the ground that shc couid not give birth to any child; that the accused contracted a second marriage with one Sunitha, who belonged to the same village as that of the deceased; and more importantly, the deceased hersell told the above witnesses (PWs 1 to 4) that the accused himself burnt her by pouring kerosene on her. The said evidence of PWs 1 to 4 is corroborated with the Dying Declaration-Ex. P.4. The relevant portion of the Dying Declation (Ex. P.a) reads as under:
....... On 26.09.2010 at about 5.00 pm he consumed alcohot and came to house and picked up quarrel uith me and stated not to go beedi compang and that I am talking to eueryone, kicked tuith legs and told that he uoutd hang me to fan and went in to the house brought kerosene tin, poured kerosene on mA saree and lit fi.re, as a result n'Lg Legs and thtghs uere burn.. ..
HCJ & AARJ ,lrl A No.1 157 of 2012
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abdomen both back and front side. For better appreciation, the
evidence of P.W.8 is reproduced hereunder:
I arrr working as Civil Asst. Surgeon at Bha:rsa since 18 months. On 26.9.2010 at about 8:30 PM T.Vandana W/o.Sayanna was adrni:ted in our hospital with burn injuries. We airmitled her in the hospilal and found 4070 burns on the lower lim5s and lower abdomen !,oth back and front side. We kept her in the hcspital for two days aad as her general condition was not improvirrg wlr referred her to Gairdhi hospital, Secunderabad. She died at Gandh. hospital after 19 da1,s after taking treatment. When she $,as admitted in the hospital sie was able to speak. Case sheet does not contain any endorsenient of asking the Magistrate to record Dying Declaration. The witnesr; brought the case sheet copy and it was no. filed earlier, received ai1d marked subject to objection. Ex:P.3 is the cas( sheet of the deceas:ci Vandana.
From the above evidence of P.W.8, it can be salely inferred that the deceased was in a conscious and coherent mental condition while giving statemen. Lrnder Ex.P.4-Dying Declaration and the Cefence also failed to elicit any information during the cross-,)xarnination to discredit this wit:-ress.
a) The relt,'uant portior-t of the evidence of PW. I -Jarlhav Vittal, the father of the cleceased, is as under:
. . Tl-re accused married my daughter Vandana at)out 2 vears back. Therc are no children out oI wedlock. They lived happily for about 2 yea:s, and since about 2 to 3 years prior to hel cle.rth they have disputr's on accoLlnt of not having children. My daughter used to sa) abolt :he same. I asked the accuscd after convir-cine him to take n.v ie Lrghter * ith him. Thc village elders also convinced the accused wh,: promise d to sta)' peace iully rr rLh his u ite. 'l-r d rughter' died abor-rr l1 months back. This pancha-vat took placc ab,)ut one
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month prior to her death.'lhe accused married another women by name Sunitha who is our relative and from our village. We also agreed for his second marriage. 2 or 3 months after the marriage they were happy and then the accused started harassing my daughter and it was increased.
The accused poured kerosene and set fire to her and my daughter was admitted in Bhainsa hospital and she informed me in the hospital. My daughter was shifted to Gandhi hospital, Hyderabad. She died after 19 days. I gave complaint to the police. Police recorded the statement of my daughter in the hospital. ...
b) The relevant portion of the deposition of PW.2-Jadhav Bheem
Rao, the relative of the deceased, is as under:
.... About 10 or 20 days prior to her death there was a panchayat as Vandana came when the accused beat and sent her to her parents house. We have convinced the accused who came to the house of PW-I. After 10 or 15 days we came to know about the incident at about 7 PM on a phone and then we have rushed to Bhainsa Govt. Hospital in two autos and found the lower portion of the deceased Vandana with burn injuries. She disclosed to me that the accused poured kerosene on her and set fire to her. The disputes started after the second marriage only. From Bhainsa hospital she was shifted to Gandhi hospital, Hyderabad. She died after l5 days. The accused is responsible for the death of his wife Vandana.
c) The relevant portion of the deposition of PW.3-K.Subash,
another relative of the deceased, is as under:
... She died as the accused poured kerosene on her and set her lire and she was admittedjn Bhainsa Govt. Hospital. Thereafter she was shifted to Secunderabad Gandhi Hospital. I shifted her from Bhainsa to Gandhi Hospital, Hyderabad and I stayed there for about 1 wcek. She disclosed that the accused poured kerosene on her and set fire on 1.10.2010 at about 5 PM...
d) PW.4-Jadav Sagar is one of the elders, who convened panchayats between thc deceased and the accused, has deposed in
his chief examination as under:
... About 15 or 20 days prior to the death of Vandana on the request of PW- 1 !e have conducted a panchayat at the house of PWI with the accused. The accused brought two elders from his village. Our caste elders 3 or 4 persons also participated in the panchayat.
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The accused promised to take care of his wife properl) 1nd took away her v,ith him.
Wr: received a telephone call about the incider.t of Vandana receiving c,f burn injuries. We visited the hospital. Thr lower portion of Vandar.ra was burnt with injuries. She was in Bhainr;a Hospital for 2 days and thereafter she was shifted to Gandhi Hospital, Secunderabad. When she was in Bhainsa hospital she disclosed that the accus€d set fire to her as she {,as notgetting childr< n.
Even if there E.re some minor contradictions while investigating a particular case. it is to be seen whether these contradictions would endanger the prosecution case complelellr' or can be ignt>red. In this case, the prosei:ution has produced sufficient oral a-1d rlocumentarl' evidence, u,hich clinchingly points out the guilt of the acr:used for the offence punishzLble under Section 302 IPC.
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Magistrate or Sub-Divisional Magistrate even though the Offices of the said officials were located nearby the Hospital, cannot be countenanced. The deceased suffered 35% to 407o burns in her legs and thighs portion and there is every chance that the investigating officer made a judgmental error believing that the victim is going to get better and live, but this itself cannot discredit the statement of the deceased.
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The d<t<:tine of dying declaration is enshined in the legcl maxim "Nemo noiturus praesumitur mentire", uthich means "a tnan will not meet his maker Lutth a lte in his mouth". The docl ine of Dgtng Declartrtion s enshined in Section 32 of the Indian Eu[dence Act, 1872 o:; an exception to the general rule contained in Sectron 60 of the Eu:dence Act, whtch prouides that oral eutdence irt cll cases rnust be direct i.e. it must be the euidence of a witness, who sags he sou 1t. 1-he dging decleration is, in J'act, the stctetn'zttt of o person who cannot be called as witness and, therefot e, cctnnot be cross-e.xamined, Such statements themselves are rele)ant facts in certain('ases.
1 9) Furthe r on the point of acceptability, admis sib; lity as well
as reliabilitv of cl.ing declaration lor tht' prtrpose o[ mirking the same
'zo ro 1a;scc514
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the sole basis of convictron, the Hon ble Supreme Court in Sudhakar
Vs. State of M.P.3, has discussed in para- 16 to 2O as under:-
' 1zotz1t scc s69
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201tn Mimnu Raja and another us. The S;iate of Madhga
Pradesha, the ' on'ble Supreme Court has held as fo, on,l;:
Supreme Court has held as follows:
tt is tuell settled that though a dging decLarattc't1. must be approat hed with caution for the reasotl that the mc'ker of the statem<..nl cannot be subject to cross-examinatton, ther,? stteither a nle ol'lau nor a rule ofprudence uthtch has hardened into a ntle of icttu that a dAtng declaration cannot be acted upon )nless it is cort oborated.
22\ ln the Dresent case, the Prosecution has pro ied that trx.P.4Dying Declarati,rri made by the deceased was voluntary, true and made when she l,as in sound mental condition. Flrrthor more, the contents of Dying Declaration are also corroborated bv the' evidence of PWs 1 to 4. ln view of the above and having regard tr, lh,:judgments of the Hon'ble Supreme Court, referred to above, it can be concluded that the Prosec ..r tion has proved beyond reasonable dor-Lbt that the accused has conrmitted the offence.
]tr szo)s scc 104
' AIR 1958 SC 22
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same should be discarded. In Poonam Bai u. State of
Chhattisgarho, the Hon'ble Supreme Court has held as under:
That in view of the above law laid down by the Hon'ble Supreme Court, this contention urged by the learned counsel for the appellant is also to be rejected.
'1zors1o scc145
7 AIR 1964 Supreme Court 23r'l
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case to direct that the defect be rectified in such marter as the circumstances tnag warront. It is onlg where the court is sahsfied, hauing regerd to llte tnanner in uthich the cose has been conclucted and the attitude aeopted bg the accused in relatton to the dekct, tlot noprejudice has reslthed to the accused that the Court would, no:,lithstanding the breach o-t the statutorg provisions, bejustified tn moi aining the conutction.
271 For t.h: aforesaid reasons and in view of the ratio laid down by the Hon'ble Supreme Court in Rajendra Singh (supra,r, the plea of alibi taken by t're appellant-accused is rejected as t 1e same is not supported by a:r-, evidence and made only as an altert:rou5;ht.
'r(2007)7 scc378
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SD/. K.SRINIVASRAO D REGISTRAR
//TRUE COPY// SE TION OFFICER
To,
J, \N/ 7. Two CDCoPies
HIGH COURT
DATED:2211012019
ORDER
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CRLA.No.1157 of 2t.t12
DISMISSING THE CFIIMINAL APPEAL.
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3 issues framed by the court
Could the dying declaration recorded by the investigating officer be relied upon without a doctor's certification or recording by a Magistrate?
Did the circumstantial evidence and dying declaration establish the accused's guilt beyond reasonable doubt?
Could the accused's plea of alibi be accepted without supporting evidence?
Colour shows how this judgement treated each authority
Padala Veera Reddg o. Stdte of A.P.Applied¶45
Padala Veera Reddg o. Stdte of A.P.
Lakhan Vs. State o:f M,P.Relied on¶95
Lakhan Vs. State o:f M,P.
Sudhakar Vs. State of M.P.Relied on¶102
1zotz1<sup>t scc s69</sup>
Mimnu Raja and another us. The S;iate of Madhga PradeshRelied on¶109
tr szo)s scc 104
Khushal Rao u. State of Bomba11Relied on¶112
AIR 1958 SC 22 · Who else cites this
Poonam Bai u. State of ChhattisgarhApplied¶121
1zors1<sup>o scc145</sup>
Noor Khan u. Stdte of RalasthanRelied on¶125
Noor Khan u. Stdte of Ralasthan
Rajendra Singh. u. State oJ U.P. and anoth.erApplied¶133
Rajendra Singh. u. State oJ U.P. and anoth.er
3 provisions across 3 enactments
THUMIVALA SAYANNA
The State of A.P.
RAGHVENDRA SINGH CHAUHAN
A.ABHISHEK REDDY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
