Dismissed

The State of Telangana.,Rep.,Pp v. Ambati Srinivas and 3 Others

Telangana HC3 Sept 2024CRLA/1237/2016

Case brief

AI extract

What is this about?

State appeal against acquittal in a dowry death/burn-injury case resting on two dying declarations. The High Court found serious doubts about their reliability, including contradictions with PW.1's statement and a possibility of accidental fire, and declined to interfere with the acquittal, dismissing the appeal.

What the court decided

AI extract

The State of Telangana.,Rep.,Pp Vs Ambati Srinivas and 3… — Dowry and Cruelty | Telangana HC (2024)

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[^337s ]

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IN THE HIGH COURT^{FOR THE STATEOF TELANGANA} AT HYDERABAD

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TUESDAY, THE THIRD DAY OF SEPTEIUBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE P,SAM KOSHY AND THE HONOURABLE SRI JUSTICE N.TUKARAMJI

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CRIMINAL APPEAL NO: 1237 OF 2016

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Criminal Appeal Under Section 378(3) &⁽¹⁾ of Cr.P.C against^{the Judgment} made in S.C.No.468 of 2012 daled 27 -01-2015 on the file^{of the Court of theV} Additional District Judge, Nalgonda.

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Between:

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The State of Telangana., REP.,PP, rep. by The Public Prosecutor,^{High Court} at Hyderabad.

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...ApellanUComplainant

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AND

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Ambati Srinivas, S/o. Sreeramulu, Age 30^years, Caste Chakali,^{Occ Private} Employee in Vybra Company Private Limited-

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Ambati Kalamma, W/o. Sreeramulu, Age 48^years, Caste Chakali, Occ:Coolie.

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3, Ambati Sri Laxmi, Dlo. Sreeramulu, Age 20^{years, Caste Chakali.}

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4_ Ambati Ravinder, S/o. Sreeramulu, Age 19^years, Caste^Chakali.

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(All R/o. Raghavarapuram village, Bibinagar Mandal, Nalgonda District).

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.. Respodents/Acc used

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Counsel for the Appellant : Mr. Syed Yasar Mamoon, Additional Public Prosecutor

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Counsel for the Respondents : Mr. A.Bhupathi Reddy, Representing Mr.Papaiah Peddakula

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The Court delivered the following : JUDGMENT

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THE HON'BLE SRI JUSTICE P.SAM KOSI{Y

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AND

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THE HON'BLE SRI WSTICE N.TUKARAMJI

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CRIMINAL APPEAL No. 1237 of 2016

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JUDGMENT: (pcr the tlooble Sn Justrce P. sAl, KOSIIY)

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Heard Mr. Syed Yasar Mamoon, learned Additional Public Prosecutor for the appellant - State and Mr. A.Bhupathi^Reddy, learned counsel, representing Mr.Papaiah Peddakula, learned counsel for the respondents - accused.

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Aggrieved by the judgment of acquittal dated 27.01.2015 in Sessions Case No.468 of 2Ol2 passed by the V Addl. District Judge at Bhongir, the instant appeal has been frled by the appellant - State.

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Vide the impugned^judgment, the Trial Court found accused No. I not guilff for the offence punishable under Section 498-A and 309 of IPC. At the same time, accused Nos.2 to 4 were a-lso found not guilty for the offence punishable under Section 498-A and 302 read with Section 1O9 of IPC and all the accused persons stood acquitted ofall the charges leveled against each one of them.

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The case of the prosecution, in brief, is that the deceased Ambati Manasa was the wife of accused No. 1. It is the case of the complainant (father of the deceased) that accused No.1 and his daughter initially had a happy married life for about six months time. Thereafter, accused No.1 started harassing deceased on the ground of dowry and he was continuously asking for additional dowry of Rs.3,00,00O/-. The complainant did manage to pay some amount to accused No. 1 so as to ensure that his daughter is not harassed. Yet accused No. 1 contilued to harass the deceased and used to often assault her and also used to doubt the fidelity of his wife. Suddenly, on 23.04.2012 at around O2:00 A.M., the complainant received a telephonic message that his daughter suffered burn injuries and she has been shifted to Image Hospital, Madhapur, Hyderabad, for treatment. The complainant immediately rushed to the Image Hospital and found burn injuries a-ll over the body of the deceased except on her head. It was further stated by the complainant that on enquiry, the deceased told him that while she was lying on the bed and was feeding her infant child, accused No. I poured kerosene on her and lit fire. Subsequently, he informed the police authorities. However, after about seven days of treatment, his daughter died beeause of burn injuries. According to the complainant, accused No.1 was

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instrumental in burning his daughter to death. At the^{same time,} accused Nos.2 to 4 were all responsible^{for continuousharassment,} ilI-treatment and torturing the deceased on^the demand^{of dowry.}

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Based on the complaint of the father of the deceased,^the Police Station, Bibinagar at District Nalgonda^lodged an^{FIR with} Cr.No.62 of 2Ol2 dated 24.O2.2O12 was registered and^investigated upon. After investigation a charge sheet was filed and subsequently the matter was put to trial before the Court of V Addl. District Judge at Bhongir where the case was registered as S.C.No.468 of 20t2.

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The prosecution in all examined as much as sixteen witnesses and exhibited as many as fourteen documents. There were no witnesses examined, neither were there any documents marked in support of defence. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C, and the Trial Court after hearing the learned counsel appearing on either side, finally passed the impugned^judgment by acquitting the accused persons of all the charges leveled against them.

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Challenging the said impugned^judgment of acquittal, the learned Additional Public Prosecutor contended that it is a case

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P age 6 of 22

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where the Trial Court has committed an error in not properly appreciating the dying declaration of the deceased while acquitting the accused persons. The learned Additional public prosecutor heavily relied upon the two dying declarations of the deceased recorded hrst by the police authorities immediately after the incident and secondly that which is recorded by the Judicial Magistrate subsequently on the same day. That the entire case of prosecution rests upon the two dying declarations and where the statement of the deceased in the two dying declarations are consistent and is ample proof of accused No.1 being instrumental in setting the deceased on fire, resulting in burn injuries which the deceased suffered and also in respect of the accused persons all of whom harassed the deceased continuously for a long time on some pretext or the other, primarily on the ground of dowr5r and also suspecting fidelity of the deceased.

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It was also the contention of the learned Additional public Prosecutor that the dying declarations also stands proved by the two offrcers who had recorded the same. That those officers are independent persons and therefore there is no reason for the Trial Court to have disbelieved the same and on that ground also the impugned^judgment warrants interference.

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Learned Additional Public Prosecutor strongly contended that since the two dying declarations stand duly proved before the Trial Court and the trrvo officers who had recorded the dying declarations have also been subjected to cross-examination wherein nothing much could be elicited in their cross-examination to disbelieve their contention.^'lherefore, the finding of the Trial Court disbelieving the aforesaid two clying declarations deserves to be held as improper and bad in law and the^judgment of acquittal disbelieving the two dying declarations deserves to be set aside.

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At this juncture it would relevant to take note of certain admitted facts rvhich are recovered in the course of recording of evidences.

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PW. 1 the complarnant, who is said to have visited the deceased at the hospital on the same day of the incident in his examination-in chief before the Court stated as under:

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'l ntshed to IMAGE Hospital and I found bum injuries all ouer the bodg except the head. On enquiry, she informed me that while sLLe utas lging on tte bed and breast feeding her infant child, A-1 poured kerosene on her and lit fi"re.

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Deceased Manasa died uhile undergoing treatment a-fter seuen dags. I attended on deceased Manasa for

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seuen dags. A-12 to A-4 beat deceased Manasa uith cheppal u.thile A 1 caught-hold her one gear pior^to death of deceased Manasa, asking her to leaue their house and to commit suicide."

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At the same time, PW.1 in his cross-examination had stated as under:

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"I auld not speak uith deceased Manosa as sh.e utas in serbus andition and I utas not aLlotued to go near bg her.

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Deceased Manasa goue tl'Le statement to the Mogistrate to that eJfect. She olso informed me on the third dag afier admitting in the hospitaL TLnt A1 poured kerosine on her^qnd set her ablaze at 12.O0 mid night while she uas lying on the bed."

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Next coming to the dying declarations, it would reveal that two dying declarations have been recorded on the same day^{by two} different authorities. One recorded by the^ASI of^{Bibinagar Police} Station at around 5:00 P.M. and second dying declaration recorded by the IV JFCM, Panj agutta, Hyderabad, on the same day at around 5:2O P.M. From the evidence of PW. l^{who had reachedthe} hospital immediately after the deceased was brought to^hospital. The deceased was not in a condition^{to speak} and^{was very serious} and even he was not allowed to^{go near her. Such} being^the

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condition, if^{we look at the two dying declarations it will clearly give} rise to certain^{seriousdoubts on the two statements'The first} doubt arises on^{account of both dying declarationsverbatim same} which in the opinion^{of the Bench is very dillicultto accept'} particularly taking^{into consideration the fact the deceased had} been admitted^{with7O% burn injuries over her body' Under ttre} said circumstalces^{she could not have beenin a condition to speak} so elaborately^{with so minute details' Secondly,in both the dying} declarations the^{deceasedhas madea statement that it was she} whohaddousedkeroseneonherbodyfromakerosenelamp available in the^{house. This statement of the deceased is just in} contradiction^{to the statementgiven by PW'l who tried to makea} statement that^{the deceased informed her that it was accusedNo'1} who had poured^{kerosene and lit frre} '^{Thirdreason to doubt the} dying declarations^{is the questionNo'3 put to t1le deceased and the} answer she^{gave to it to the Judicial Magistrate,whichagain for} ready reference^{is reproduced hereinunder:}

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"3. Do gou tell angthing^more?

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Ans r Modom, mg tusband^{i's responsible} for^the burn injuies^{sustained bg me' If he lnd not lit the} emptg kerosene^{lamp, I tttouldnot haue receiued the} burn injuies on^{mg bodY-"}

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The aforesaid answer of the deceased in fact gives rise to a possibility of the deceased getting caught Iire accidentally.

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Undoubtedly in her dying declaration, both to the ASI as also the Judicial Magistrate she has accepted that it was she who had doused kerosene on her body. She further accepted in both her statements that she slept on the floor with kerosene doused clothes. At the end she says that if her husband / accused No.l would not had lit the empty lamp, she would not have received burn injuries. This in other words means that accused No.1 lit the kerosene lamp and not the deceased. Since it was dark around midnight, because of kerosene having got spilled over the entire area, the kerosene must have caught fire and the deceased also in the process caught fire. As a result of the same the deceased suffered burn injuries.

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In addition, there also seems to be a conflicting evidence when compared to the statement of PW.1 and also the statement of the deceased and if all these statements have to be taken note of a-long with the categorical statement of the deceased, it was she herself who had doused her with kerosene. This gives rise to a great elemenf of doubt so far as^the dying declarations given by

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the deceast-'cl. In the said circumstances if the Trial Court has given the benefit of doubt to the accused, the same cannot be found fault with

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It would be relevant at this juncture to refer to a couple of judgments of the Hon'ble Supreme Court on this subject matter. The Hon'ble Supreme Court in the case of Irfan alias Naka v. State of Uttar Pradeshr held as under; viz,

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"44. TtLe mode and manner, in which the dging declarations came to be recorded, is also som-ething tuhich creates a doubt, as regards its truthfulness and trustworthiness. Although, tLe Inuestigating Officer sags that the recording of tte dgttg declaration s utas uideo-graphed and the CD Lns been exhibited in euidence get it is uery important to detetmine the euidentiary uaLue of tle same.

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The justifi-cation for the sanctitg/ presumption attached to a dgirLg decloration, is ttuo fold; (i) ethicaUg and religiouslg it is presumed tlnt o person uhile at the bink of death will not lie, whereas (ii) from o public policy perspectiue it is to tackle a situation uh.ere tlrc onlg uitness to the cime is not auqilable.

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This Court in Mutfut Kuttg u. State bg Inspector of Police, 7.N., (2OOS) 9 SCC 113, rohile discussing the decisian in Woodcock (supra) refened to aboue had

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r 2023 SCC Online SC 10. -

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cautioned the courts to ensure that o dging declaration is reliable before relging on it, utith the follouting obseruations :^-

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... The situation in u.thich^a persan^i.s on the deathbed is so solemn and serene^u..then he is dging tLLat the groue position in which^{he is} placed, is the reason in laut to accept uerdcitA of hi.s statement. It is for this reason that the requirements of oath ond cross-examination are dispensed uith. Besides, slnuld the dging declaration be excluded it tttill result in miscarriage of^justice becouse the uictim being generallg the onlg eyetuitness in a seious cime, the exclusion of the statement Luould leaue the court uithout a scrop of euidence.

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15, Though a dging declaratton is entitled^to great uteight, it is tuorthuhile to note that the ocansed has no pottter of cross-examination. Such a pouter b essential for eliciting^{tLLe truth} as an obligation of oath could be. This is^the redsorl the court also insists thqt the dging declaration should be oJ such^a ft@ture as to inspire fall confidence of the court in its correctness. ?he court hrrs to be on guard that the statenent o;f the deceased u)@s n,ot as a resttlt of either tutoring, or prompting or a^product of imagination. The court must be furaher sdtisJied that the decedsed utas in a Jit state of mind after a clear oppordtnitg to obserue and. identifg the assailant.^Once the court is satisfied thdt the declatation utds true and uoluntary, undoubtedlg, it cr::t base its convictlon ulthout dftg further^{corroboration. lt cannot be laid dou-tn} as an absolute rule of lau that the dgtng declaratton cannot forrn the sole basis of conl^- unLess it is corroborated. The rule

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requiing conoboration is merelA a rule of pnLdence...."

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(Emphasis supplied)

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There i.s no hard and fast rule for determining Luhen a dging declaration should be accepted; tLrc duty of tlLe Court is to decide this question in the facts and sunounding circv.m-stances of the cose and be fully conuinced of the truthfulness of th.e same. Certain factors^{beloutreproduced} can be considered to detennine tLte same, hotueuer, theg uill onlg affect the weight of the dging declaration and not irs admissibilitg:-

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(i) Whether the person making tlle statement tuas in expectation of death?

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(ii) Whether the dying declaration was made at the earliest opporTunitg? "Rule of First Opportunitg"

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(iii) WLrcther there b any reasonoble suspicion to belieue the dging declaration Luas put in the mouth of the dging person?

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(iu) Whether the dging declaration u)as a product of prompting, tutoing or leading at the instance of police or ong interested partg?

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(u) Whether the statement uas not recorded properlg?

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(ut) Whether, the dging declaront had opportunitg to clearly obserue tle incident?

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(uii) Whether, tlLe dging declaration hn s been con siste nt througlwut?

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(uiii) Whether, the dging declaration in itseLf is o manifestation/ Jiction of the dging person's imagination of uthctt he thinks tronspired?

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(ix) Whetlrcr, the dging declaration utas itself uoluntary?

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(x) In case of multiple dging declarations, tuhether, tLLe frst one inspires truth and consistent uith the other dying decloration?

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(i) Whether, as per the injuries, it uouLd haue been impossible for the deceased to make a dging declaration?

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It i"s the dutg of the prosecution to estoblish the charge against the occused begond the reasonable doubt. Tle benefit of doubt must aluaAs go in fauour of the accused. It i-s true that dging declaration is a substantiue piece of euidence to be relied on prouided it is proued that the seme was uoluntary and truthful and the uictim utas in a fit state of mind. It i.s^just not enough for the court to sag that the dging declaration i.s reliable as th.e acansed i.s named in the dging declaration as the assoilant.

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It i,s unsafe to record the conuiction on the basis of a dying declaration alone in the cases u.there suspicion, like the case on hand is roi.sed, as regards tLLe correctness of the dging declaration. In such cases, the Court mag ttnue to look for some coroboratiue euidence bg treating the dying declaration onlg as a piece of euidence. The euidence and mateial auailable on record must be properly ueighed in each cose to anriue at an appropiote conclusion. The reo-son^u.thg . so is that in the case on hand, "O:Tn :"0

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appellont-conuict has been nomed in the tuto dying decLarations as o person tuLn set the room on fre get the surrounding circum-stances render such statement of the declarants uery doubtful.'

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L7. Further, the Hon'ble Supreme in the case of Rajendra v. State of Maharashtra2 held at paragraph Nos.25 and 26 as under:

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"25. Ttrc lanu relating to dging declaration i.s now u-'ell settled. Once a dging decktration is found to be autlrcntic inspiring conftdence of the court, then the same con be relied upon and can be the sole basis for conuiction u:itlaut ang corroboration. Howeuer, before accepting such a dging declaration, court must be satisfied that it was rendered uoluntailg, it is consistent and credible and that it i.s deuoid of ang tutoing. Once such a concfusion is reached" a great deal of sanctitg is attached to a dying declaration and as said earlier, it can form the sole basb for conubtion.

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Section 32(1) of the Indian Euidence Act, 1 872 deols ulith dging declaration. Since the said prouision is reLeuant, it is extracted hereunder:

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[32.]^{Cosesin tuhich statementof reLeuant} fact bg person utn is deod or cannot be found, etc., is reLeuont. Statements, turitten or uerbal, of releuant facts made bg a person uLo i.s dead, or uho cannot be found, or u-tLo has *"9r".

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incapable of giuing euidence, or u-those attendance cannot be proanred without an amount of delay or expense whiclL under the ciranmstances of the case, appears to the Court unreasonable, are themselues reLeuant facts in the followino ccses.'-

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(1) Wen it relates to cause of death. - When the stotement is made bg a person as to the cause of hi-s death, or os to ang of the circumstances of the transaction uthich resulted in his death, in cases in tuhich the cause of that person's death comes into Etestion.

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Such statements ore releuant tuhether the person u.tho made them was or u)as not, at th.e time uhen tlleA uere made, under expectation of death, and u.thateuer mng be tLLe nahtre of the proceeding in tuhich tLLe couse of hi.s death comes into question.'

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The Honble Supreme Court in the case of Amol Singh v. State of Madhya Pradesh3 clarified that it is not the plurality of the dying declarations that matter. On the contrary, it is the reliability of a dying declaration which is significant. If there are inconsistencies between one dying declaration arrd the other, the Court has to examine the nature of the inconsistencies i.e. whether those are material or not.

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The Hon'ble Supreme Court^also in the^{case of Lakhan v.} State of Madhya Pradesha held that where there^{are multiple} dying declarations '*,ith inconsistencies between them,^{the Court} would have to scrutinize the facts very carefully and^thereafter take a decision as to which of the declarations^{is worth reliance.}

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2o. Again, in the case ofAshabai v. State of^{Maharashtras,} the Hon'ble Supreme Court observed that when there^are multiple dying declarations, each dying declaration has to^be separately assessed and evaluated independently on their^own merit as to the evidentiary value of each. One cannot be rejected merely because of certain variations in the other.

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2t. So far as interfering with the^judgment of acquittal^{in an} appeal by the Trial Court, it has been held by the^Hon'ble Supreme Court in a catena of decisions that unless there^is substantial strong evidence which is not been appreciated^{by the} Trial Court and u,here the commission of offence by the accused 1S glaringly established, the^judgment of acquittal is not be interfered as a matter of routine. The Hon'ble Supreme Court in

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the case of Ballu and Another v. State of Madhya Pradesh6 in paragraph Nos.6 to 9 observed as under:

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"6. Undoubtedly, the proseantion cose resfs on circumstantial euidence. The law with regard to conuiction on the ba-sis of circumstantial euidence has uery u-tell been crystali.z,ed in the judgment of thi.s Court in the case of Slnrad Birdhichand Sorda u. State of Maharashtraz, uherein this Court held tlrus:

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"752. Before discussing the coses relied upon bg the High Court ue u-touLd like to cite a feu.t deci,sions on tLLe nature, character and essentiaL proof reEtired in a ciminaL case u.thich rests on circumstantial euidence alone. The most fundamental^{and basic decision of this Court} is Hanumant u. State of Madhga Pradesh !(1952) 2 SCC 71 : AIR 1952 SC 343: 1952 SCR 1O91 : 1953 Cri LJ 1291. This case has been uniformlg foltoued and applied by this Court in a large number of Later decisions up-to-date, for instance, tLLe cases of Tufail (Alios) Simmi u. State of Uttar Pradesh [(1969) 3 SCC 198:197O SCC Cd 551 and Ramgopal u. State of Maharashtra [1972) 4 SCC 625 : A]R 1972 SC 6561. It may be useful to extroct what Mahajon, J. has laid dou-tn in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343: 1952 SCR 1091 : 1953 ciLr 1291:

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"lt is tuelt to remember that in cases u-there the euidence is of a circtmstantial nahtre, the circumstances from uhich the conclusion of guilt is to be dra utn should in the first instance be fullg established, and all the fttcts^{sct establbhed should be consistent} onlg uith the hgpothesis of the guilt of the acansed. Again, the cirqtm-storuxs stnuld be of a conclusiue nature and tendencg and they slLould be such as to exclude euery hgpothesis but tlrc one proposed to be proued. In other u.tords, tLere must be a chnin of euidence so far complete as not to leaue anA reasonable ground fo, a conclusion consbtent utith the innocenrc of the accused and it must be such as to shou.t that ulithin all human probabilitg the oct must haue been done bg tle acansed."

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It can thus clearly be seen tlnt it is neeessary for the prosecution thot the ciratmstonces from uhich the conclusbn of the guilt is to be dra u.tn stnuld" be fully established. The Court holds that it b a primory pinciple thot tLrc accused 'must be' and not m.erely 'may be' proued guiltg before a court can conubt the acatsed. It has been held that there i.s not onLg a grammatical but a legal distinction between 'mag be proued' and'must be or should be proued'. It has been held that the facts so established sLauW be consistent onlg u.tith tlrc guilt of the accused, tlnt is to sag, they should not be explainable on anA ottter hgpoth.esi.s except that the accused i.s glliltA. It has further been held that the cira.Lm.stances should be such tlnt theg exclude euery possible hgpothesis except th-e one to be proued. It has been teLd that there mtst be a ctnin of euidence so complete as not to leaue ang reasonable

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ground for th.e conclusion consistent uith the innocence of the accused ond must sLrout that in all human probabilities the act must hnue been done bg the accused.

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It is settled lau.t that the suspicion, howeuer strong it mag be, cannot take the place of proof begond reasonable doubt. An occused cannot be conuicted on the ground of suspicion, no matter hou strorLg it is. An accused is presumed to be innocent unless proued guiltg beyond a reasonable doubt.

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Apart from that, it i.s to be noted that the present case is o case of reuersal of acqtittal. The la ut tuith regard to interference bg the Appellate Court i.s uery uell crystalli"zed. Unless the findirLg of acquittal is found^{to be peruerseor impossible, interferenceu.tith} the same uould not be utarranted. Tttough tLLere are a catena of^judgments on the i.ssue, ute will onlg refer to two^judgments which tte High Court itself ha's reproduced in the impugned^judgment, uthich ore os reproduced belou:

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"13. In ca.se of Sadhu Saran Singhu. State of U.P. (2016) 4 SCC 357, the Supreme Court tns held that:-

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" In an appeol against acquittal u.there tLe presumption of innocence in fauour of the acrttsed is reinforced, the oppellate Court utould interfere utith the order of acquittol onlg uhen there is peruersitg of fact and ! a u-t . Howe uer, LUe belieue that tLe paramount consi.deration of ttLe Court is to do substantial^justice and auoid mi-scarriage

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oJ'^justice u.thich can arise bA acquitting the accused LUho i.s guiltg of an offence. A mtscarrioge of^justice thnt maA occur bg ttte acEtittal of the guilty rls no less than from the conuiction of an innocent. Appellate Court, tuhile enunciatirLg the^principles with regard lo the scope of potuers of the oppellate^()ourt in an appeal against ocquittal, has no absolute restriction in^{la u.t} to reuieuL and relook the entire euidence on uhich the order of acquittal is founded."

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Similar, In case of Harljan Bhalo Teja u. State of Gujarat (2O16) 12 SCC 665, the Supreme Court has held that:-

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doubt, tuhere, on appreciotion of euidence on reard, ttDo uielus are possible, ond the tiol court has taken a uieut of acquittal, the appellate court stauld not interfere with the same. Howeuer, this does not meon that in all the cases ulrcre the tial court hizs recorded acquitta| the same should not be interfered uith, euen if the uieuL is peruerse. Wlere the uiew taken bg the tiat court is ogain-st the weight of euidence on record, or peruerse, it b alutays open far the appellate court to express the right conclusion afier re-oppreciating tlrc euidence If the chnrge i.s proued begond reasonable doubt on record, and conuict tLrc accused.""

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In the given factual backdrop and the^judicial precedents flowing from the Honble Supreme Court on the subject matter and also on interfering with the judgment of acquittal and for the

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reasons narrated in the preceding paragraphs, we Iind it difficult to interfere with the judgment of acquittal.

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