Andhra HC (Pre-Telangana)
Md. Yousuf S/O. Shaik Alam vs State Of A.P., Rep. By Public ... on 14 March, 2014
Bench: L. Narasimha Reddy, M.S.K.Jaiswal
HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL CRIMINAL APPEAL No.1825 OF 2009 14-03-2014 Md. Yousuf S/o. Shaik Alam Appellant State of A.P., rep. By Public Prosecutor, High Court, Hyderabad Respondent Counsel for the Appellant: Sri A. Tulsi Raj Gokul Counsel for the Respondent :Public Prosecutor <Gist: >Head Note: ?Cases referred: NIL HONOURABLE SRI JUSTICE L. NARASIMHA REDDY AND HONOURABLE SRI JUSTICE M.S.K. JAISWAL CRIMINAL APPEAL No.1825 of 2009 JUDGMENT:
(Per Honble Sri Justice L. Narasimha Reddy) The sole accused in S.C. No.557 of 2008 on the file of the VI Additional District & Sessions Judge, Medak at Siddipet, is the appellant herein. He was alleged to have harassed his wife Rajiya Sulthana Begum for dowry and murdered her. The trial Court convicted him for the offences punishable under Section 498-A and 302 IPC. Sentence of rigorous imprisonment for three years and fine of Rs.500/-, in default to suffer simple imprisonment for three months was imposed for the offence punishable under Section 498-A IPC and sentence of imprisonment for life and fine of Rs.2,000/-, in default to undergo simple imprisonment for six months was imposed for the offence punishable under Section 302 IPC. Both the sentences were directed to run concurrently.
2. The complaint Ex.P-14 about the incident was submitted by PW-1 - father of the deceased. He stated that he has three daughters and three sons, the marriage of his second daughter Rajiya Sulthana Begum was performed about 18 years ago with the accused, and they were blessed with two daughters and a son. It was alleged that the accused became addicted to liquor for the past one year and used to harass Rajiya Sulthana physically and mentally, demanding money, which she earned by rolling Beedies. He further alleged that the accused who was working as Driver on a Truck remained in the house for three days preceding the incident, and at 1.00 p.m., on 11.06.2008 he picked up quarrel with his wife, tortured her and ultimately poured kerosene and set her ablaze. The incident is said to have been informed to him by his daughter herself and that she was struggling for life.
3. The Station House Officer, P.S. Siddipet I-Town, registered Crime No.158 of 2008 under Sections 498-A and 307 IPC. He went to the scene of offence, gave a requisition to the jurisdictional Magistrate to record the dying declaration and shifted her to the Government Area Hospital at Siddipet. He is also said to have recorded the statements of the parents, brothers, sisters of the deceased and other witnesses under Section 161 Cr.P.C. PW-9 - Magistrate is said to have recorded the dying declaration marked as Ex.P-11 and since the condition of the patient was serious, she was shifted to Gandhi Hospital, Hyderabad. The patient is said to have died on the intervening night of 17th and 18th June, 2008. The provision of law in the FIR was altered. Inquest and post mortem were conducted. On completion of the investigation, a charge sheet was filed. The case was committed to the trial Court and charges were framed against the accused. On his pleading not guilty, the trial was conducted.
4. The prosecution examined PWs.1 to 14 and filed Exs.P-1 to P-16. MOs.1 to 4 were taken on record. No evidence was adduced by the defence.
5. Learned counsel for the appellant submits that every possible witness in the case, including the parents, the sisters and the children of the deceased were treated hostile and still the trial Court convicted the accused only on the basis of the dying declaration. He submits that a dying declaration can constitute the basis for conviction if only, there is semblance of corroboration to it, and in the instant case, there is no corroboration whatever, even from the parents and children of the deceased. He submits that the consistent version of all the witnesses is that the deceased was suffering from serious stomach-ache and unable to bear it, she committed suicide, after sending her children out for purchase of medicine. He further submits that in his statement recorded under Section 313 Cr.P.C., the accused pleaded that he received information about the burn injuries to his wife when he was on duty at Secunderabad and it is who got her admitted in the hospital and arranged for treatment and the trial Court did not take the same into account.
6. Learned Public Prosecutor, on the other hand, submits that Ex.P-9 was recorded immediately after the occurrence, by the jurisdictional Magistrate and it totally accords with the requirements under law. She submits that though almost all the witnesses who are the family members of the deceased and accused turned hostile, the trial Court found truth in the dying declaration and that no exception can be taken to the conviction and sentence ordered against the accused.
7. The marriage between the accused and the deceased took place about 20 years prior to the incident. Their children were also grown up and just before the incident, the marriage of the eldest daughter was performed. The proceedings against the accused, commenced with the submission of Ex.P-14 by PW-1 at 2.00 p.m. on 11.06.2008. He stated that the incident occurred at 1.00 p.m. on 11.06.2008 and his daughter (the deceased) herself informed him about it. Immediately, the ASI - PW-12 registered Crime No.158 of 2008 and shifted the deceased to hospital. Right in the hospital, he recorded the statements of PWs-1, 3 to 6, who included the parents and sister of the deceased, and the children of the deceased and the accused. In Ex.P-14, PW-1 has simply stated that he received information about the incident and that this daughter is struggling for life and undergoing treatment. He gave complaint and proceeded to the hospital where she was already admitted for treatment. In his statement, which is marked as Ex.P-2, PW-1, however, stated that he himself proceeded to the place of occurrence and he put off the flames and took her to the Government Hospital for treatment. It was also stated that the accused went to kitchen, brought the kerosene tin and poured upon the deceased on the ground that she did not give the money.
8. PW-2 is a woman acquainted with PW-1 and his family members. She stated that at about 1.00 p.m. on 11.06.2008, when she was rolling beedies, the deceased came running from her house, crying Bachav Bachav. Thereupon, she i.e., PW-2 rushed to the house of the parents of the deceased, in front of her house and informed them about the incident, they came and put off the fire and took her to the area hospital. There was no reference to PW-2, in Ex.P-14. However, PWs.1 to 6, whose statements were recorded under Section 161 Cr.P.C. as Exs.P-1 to P-7, were declared hostile. It is important to mention that PW-1 is the father, PW-3 is the brother, PW-4 is the mother, PW-5 is the son and PW-6 is the daughter of the deceased. The uniform version presented by them was that the deceased was suffering from serious stomach-ache and unable to bear it, she committed suicide. More important is the evidence of PWs.5 and 6, the children of the deceased and the accused. Both of them were minors when they were examined as witnesses. They stated that their mother was suffering from serious stomach pain and on 11.06.2008 they were sent to hospital to bring medicine and by the time them came back, their mother poured kerosene on herself and set her on fire. They sated that their father was working as a driver on a vehicle and they did not speak out his presence in the house. In the cross examination by the Public Prosecutor, it was suggested that the accused was addicted to liquor and he poured kerosene upon the deceased and let her fire when she did not give money for liquor and the said suggestion was flatly denied by PWs.5 and 6.
9. Once such important witnesses have not supported the case of the prosecution, the only material to fall back, is the dying declaration - Ex.P-11 recorded by PW-9. A perusal of Ex.P-11 discloses that the certificate of Medical Officer as to the condition of the patient was obtained from the Civil Assistant Surgeon, Government Area Hospital. Though a Civil Assistant Surgeon was examined as PW-11, he is the one who conducted autopsy. He did not speak anything about the certification before Ex.P-11 was recorded. In the cross-examination also he has stated that he did not mention the nature of treatment given to the deceased. It is not known whether any other Civil Assistant Surgeon has certified the condition of the patient.
10. PW-9 the Magistrate was cross-examined on several aspects. It is brief and reads as under:
A police constable of Siddipet I Town Police brought Ex.P-1 requisition to me, but I have not noted his number. I have not seen the case sheet of the patient. I have not enquired with the doctor about the treatment given to the patient. The victim has not stated the reason for quarrel by her husband with her. By the time I went to the burns ward the relatives of the victim were not present. I do not know whether the relatives of the deceased have tutored the deceased before I went to the Hospital. I have not enquired with the Medical Officer about the treatment and condition of the victim, and about percentage of burns. It is not true to suggest that victim sustained 80 to 90 per cent burns and she was not in a position to talk and to give coherent statement.
11. From this, it is evident that several procedural lapses have crept into recording of Ex.P-9. In the dying declaration, the deceased stated that her husband came to the house in a drunken condition, started quarrelling with her and set her on fire with a matchstick. She is said to have run to the house of PW-2 and the accused also said to have followed her. Her bothers are said to have admitted her in the hospital. She did not speak about the presence of her father. The evidence of PW-2 and even the brothers of the deceased, did not support Ex.P-11.
12. Learned Trial Judge relied upon the judgments of the Supreme Court in Arvind Singh v. State of Bihar (2001, Crl.L.J.2556 (Supreme Court)) and P. Mani v. State of Tamil Nadu (2006 AIR, SCW, 1053) in support of the principle that even in the absence of any other evidence, a dying declaration can constitute the basis to hold the accused guilty. That, however, would be possible only when the dying declaration accords with law and there is no other material to contradict it. Absence of support is one thing and presence of contradictory material is another. A dying declaration can stand on its own in the absence of corroborative material also if it is otherwise valid in law. Where, however, the evidence on record directly contradicts the dying declaration, it cannot be accorded the status of the unimpeachable evidence, to convict an accused. It was already pointed out that not only there exists several procedural lapses in Ex.P-11, but also there is voluminous evidence, which contradicts it.
13. Whatever its worth is, in his statement recorded under Section 313 Cr.P.C., the accused stated that he received information about the burn injuries of his wife when he was on duty at Secunderabad, he immediately, came to Siddipet and shifted her to Gandhi Hospital and arranged for treatment. This is in consonance with the evidence of his children PWs.5 and 6. We are of the view that the conviction and sentence ordered by the trial Court against the accused cannot be supported in law, or on facts.
14. In the result, the Criminal Appeal is allowed. The conviction and sentence ordered in S.C.No.557 of 2008 on the file of the VI Additional District & Sessions Judge, Medak at Siddipet, dated 26.10.2009, against the appellant-accused, are set aside. The appellant-accused shall be set at liberty forthwith, unless his detention is needed in any other case. The fine amount, if any, paid by the appellant-accused shall be refunded to him.
____________________ L. NARASIMHA REDDY, J __________________ M.S.K.JAISWAL, J March 14, 2014.