Andhra Pradesh High Court - Amravati
Supreme Court In Raju Devade vs State Of Maharashtra on 15 November, 2022
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
CRIMINAL APPEAL No.896 of 2014
JUDGMENT:- (Per Hon'ble Sri Justice C. Praveen Kumar) Aggrieved by the judgment of acquittal, dated 07.04.2014, passed in Sessions Case No.170 of 2013 on the file of the learned III Additional Sessions Judge, Guntur, the victim/P.W.2 preferred the present Criminal Appeal under Section 372 of the Code of Criminal Procedure, 1973.
2. Originally, A.1 to A.3 were tried for an offence punishable under Section 302 read with Section 34 of Indian Penal Code, 1860 [for short, "I.P.C."] on an allegation that on 15.11.2012, A.1 poured kerosene on one Kappala Anuradha (hereinafter, referred to as "the deceased"), while she was sleeping in her parents' house and thereafter, A.2 and A.3 set her on fire, leading to her death on 19.11.2012.
3. The facts, as culled out from the prosecution witnesses, are as under:-
(a) P.W.1 is the mother of the deceased; P.W.2 is the husband of P.W.1 and junior paternal uncle of P.W.3; P.W.4 is the son-in-law of P.Ws.1 and 2. A.1 is the brother-in-law of the 2 CPK, J & BVLNC, J Crl.A.No.896 of 2014 deceased while A.2 is the mother-in-law of the deceased. A.3 is the wife of A.1.
(b) The deceased was given in marriage to one Naga Malleswara Rao over thirteen or fourteen years prior to the incident. About ten to twelve days prior to the incident, the said Naga Malleswara Rao committed suicide and died. It was alleged that the said Naga Malleswara Rao had illicit intimacy with A.3 and in that regard, a quarrel took place between Naga Malleswara Rao and A.1 leading to Naga Malleswara Rao committing suicide. After the death of Naga Malleswara Rao, P.W.1 stayed along with her daughter [deceased] in their house, which is adjacent to the house of the accused in Bandarupalli Village. About eleven days after the death of Naga Malleswara Rao, on one day i.e. on 15.11.2012, at around 4:00 A.M., P.W.1 heard cries. On hearing cries, P.W.1 came out and saw the deceased in flames. She claims to have noticed A.1 to A.3 running towards their house. Having regard to the cries raised, P.Ws.5 to 8 came and put off the flames by removing the clothes of injured and covering her with a blanket. P.W.1 telephoned to her husband (P.W.2) and informed about the incident. On receiving the information, P.W.2 also reached the house of his daughter and thereafter, took her to Government General 3 CPK, J & BVLNC, J Crl.A.No.896 of 2014 Hospital, Guntur initially and from there, to Life Hospital, Guntur for better treatment.
(c) On 15.11.2012, at about 5:00 A.M., while P.W.14-Head Constable at Government General Hospital Outpost Police Station, was on duty, received intimation - Ex.P-12 from the Casualty Medical Officer about the admission of the injured in the hospital. Immediately, he proceeded to the Casualty Ward and identified the injured. But, the doctor advised to wait till 8:00 A.M. for recording the statement of the patient. At about 8:00 A.M., he took the opinion of the doctor as to the consciousness of the injured and thereafter, proceeded to record the statement. After recording the statement, he got the same certified by the Duty Doctor. Ex.P-13 is the statement and Ex.P-14 is the endorsement of the doctor. Then, P.W.14 sent the statement of the patient and intimation with a memo to Tadikonda Police Station through Police Constable. On receipt of hospital intimation along with the statement of the injured, P.W.16 registered a case in Crime No.191 of 2012 for the offence punishable under Section 307 read with 34 I.P.C. and sent original F.I.R. to the Magistrate Court. Ex.P-19 is the F.I.R.
(d) It is to be noted here that P.W.15, who was working as IV Additional Junior Civil Judge, Guntur, received hospital 4 CPK, J & BVLNC, J Crl.A.No.896 of 2014 intimation on 15.11.2012 at about 7:40 A.M. for recording the dying declaration of the injured. He proceeded to the hospital and at about 7:50 A.M., identified the patient with the help of Medical Officer and recorded the statement of the injured on being satisfied that the patient is conscious, coherent and fit to give the statement. Ex.P-17 is the statement of the injured, while Ex.P-16 is the hospital intimation. The certification of the doctor is marked as Ex.P-18.
(e) P.W.16 - Sub-Inspector of Police, who continued with the investigation, proceeded to the hospital after registering the crime and recorded the statement of the injured under Ex.P-25.
He then visited the scene of offence and also prepared a rough sketch of the scene in the presence of P.Ws.9 and 10. Ex.P-20 is the observation report while Ex.P-21 is the rough sketch. From the scene of offence, P.W.16 seized burnt saree pieces under M.O.3 in the presence of P.Ws.9 and 10. He recorded the statements of P.Ws.1, 2 and 5 to 8. On 20.11.2012, at about 9:00 A.M., P.W.16 received death intimation from Station House Officer, Kothapet Police Station along with the intimation of Life Hospital, Guntur. Ex.P-22 is the death intimation. Basing on the same, he altered the section of law from Section 307 read 5 CPK, J & BVLNC, J Crl.A.No.896 of 2014 with 34 I.P.C. to Section 302 read with 34 I.P.C and issued Ex.P-24 - altered F.I.R.
(f) Further investigation in this case was taken up by P.W.17 - Inspector of Police. He proceeded to Mortuary of Government General Hospital, Guntur and conducted inquest over the dead body. During the inquest, he examined P.Ws.1 to 4 and recorded their statements. He also got photographed the dead body of the deceased. P.W.17 visited the scene of offence and examined P.Ws.5 to 8 and recorded their statements. After conducting the inquest proceedings, the dead body was sent for Post Mortem examination.
(g) P.W.13 - Assistant Professor, Government Medical College, Guntur, conducted post mortem over the dead body of the deceased at 3:45 P.M. and issued Ex.P-11 - Post Mortem Certificate. According to him, the cause of death of the deceased was due to burns and approximate time of death is 12
- 24 hours prior to post mortem examination. On 26.11.2012, at 8:00 A.M., P.W.17-Inspector of Police arrested A.1 to A.3. Pursuant to the confession made by the accused, P.W.16 along with P.W.17, mediators and A.1, proceeded to Bandarupalli Railway Station and from the thorny bushes adjacent to Railway 6 CPK, J & BVLNC, J Crl.A.No.896 of 2014 Station, A-1 brought out a plastic can - M.O.1 and a match box
- M.O.2.
4. After examining all the witnesses and collecting necessary documents, a charge sheet came to be filed, which is taken on file as P.R.C.No.07 of 2013 on the file of the learned Additional Judicial Magistrate of First Class, Mangalagiri.
5. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to them. As the case is triable by a Court of Sessions, the same was committed to the Court of Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned III Additional Sessions Judge, Guntur, for trial and disposal in accordance with law.
6. Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, they pleaded not guilty and claimed to be tried.
7. To substantiate its case, the prosecution examined P.Ws.1 to 18 and got marked Exs.P-1 to P-26 and M.Os.1 to 3. Out of eighteen witnesses examined by the prosecution, P.Ws.5 to 10 did not support the case of the prosecution and were treated hostile by the prosecution.
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8. After the closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. However, they did not adduce any oral evidence except marking Exs.D-1 and D-2 in support of their plea. Having regard to the inconsistent dying declarations and since the learned Magistrate did not follow the procedure, as required under Criminal Rules of Practice while recording the dying declaration, coupled with the evidence of the doctor, who categorically stated that the injuries on the body indicate that it was a case of suicide, the learned Sessions Judge acquitted A-1 to A-3. Challenging the same, the present appeal came to be filed by the victim/father of the deceased.
9. Sri P.V.S.K. Chakravarthy, learned counsel for the appellant, mainly submits that though there are some variations in the three dying declarations recorded, with regard to the participation of the accused in the commission of offence, but the Court can take into consideration the dying declaration recorded by Magistrate for convicting the accused. He would submit that having regard to the judgment of the Hon'ble 8 CPK, J & BVLNC, J Crl.A.No.896 of 2014 Supreme Court in Raju Devade vs. State of Maharashtra1, the dying declaration which inspires confidence and more particularly, the one recorded by a Magistrate can be looked into for the purpose of convicting the accused. Insofar as the evidence of the doctor is concerned, learned counsel for the appellant would contend that it is only opinion evidence and the same shall not weigh and come in the way of the Court to believe the dying declaration. He took us through the dying declarations to show that the evidence of P.Ws.1 and 3 supports his plea.
10. Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor, would submit that it is a fit case where the order under challenge warrants interference. He took us through the three dying declarations recorded to contend that anyone of the dying declarations, more particularly, the one recorded by the Magistrate, which inspires confidence, can be taken into consideration for convicting the accused.
11. On the other hand, Sri Syed Sardar Saheb Akil, learned counsel representing Ms. Sowjanya Lakkula, learned counsel appearing for the respondents/accused, opposed the same contending that the three dying declarations are an outcome of 1 2016(11) SCC 673 9 CPK, J & BVLNC, J Crl.A.No.896 of 2014 tutoring. According to him, the evidence on record shows that the mother of the deceased accompanied the deceased to the hospital. There is material on record to show that the family members were along with the deceased before recording the statement. Hence, no reliance can be placed on the statements of the injured. Apart from that, learned counsel would contend that there are number of circumstances to indicate that it is a case of suicide.
He further submits that the incident happened inside the house of the deceased in the early hours at 4:00 A.M. and it is nobody's case that the said house has no door or that the door was kept open at 4:00 A.M. That being so, it is strange as to how the accused could have entered the house and set the deceased on fire. Apart from that, the evidence of the doctor clearly indicate that the burns are suicidal burns, which probablizes the defence of the accused. Insofar as the evidence of P.W.1 is concerned, he would contend that in one breath, she claims to be inside the house and in another breadth, she claims to be living in her house at a distance of 10 minutes' walk from the house of the deceased. It appears that P.W.1 changed her version and deposed as if she saw three accused running from the house of the deceased.
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12. Having regard to the above, learned counsel for the respondents/accused would contend that though there are three dying declarations, the same are inconsistent with each other with regard to the participation of the accused. The other circumstance also throw doubt as to the genuinity of the contents of the dying declarations. In other words, his argument appears to be that if the incident has occurred due to participation of the accused, there is no necessity for the deceased to change her version from stage to stage. This being an appeal against acquittal and as the judgment under challenge cannot be said to be perverse and when two views are possible, the appellate Court shall not interfere with the findings of the trial Court.
13. The point that arises for consideration is:-
"Whether the prosecution was able to bring home the guilt of the accused beyond all reasonable doubt?"
In other words, "Whether the reasoning given by the trial Court in acquitting the accused can be said to be perverse?"
14. It is to be noted here that this is an appeal against acquittal and that too, filed at the instance of a private party. The scope of interference in an appeal against acquittal has 11 CPK, J & BVLNC, J Crl.A.No.896 of 2014 been gone into by the Hon'ble Supreme Court in Jaswant Singh v. State of Haryana2, wherein it was observed as under:-
"21. The principle to be followed by appellate courts considering an appeal against an order of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the order is clearly unreasonable it is a compelling reason for interference (see Shivaji Sahabrao Bobade v. State of Maharashtra MANU/SC/0167/1973 : 1973CriLJ1783 . The principle was elucidated in Ramesh Babulal Doshi v. State of Gujarat MANU/SC/0504/1996 : 1996CriLJ2867 : While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions."
15. The Hon'ble Supreme Court, in Ghurey Lal vs State Of U.P3, while referring to the case of Sheo Swarup v. King Empero4, discussed the ambit and scope of the powers of the appellate Court in dealing with an appeal against acquittal and observed as under: (at p. 230):
"..the High Court should and will always give proper weight and consideration to such matters as (1) the 2 AIR 2000 SC 1833 3 Criminal Appeal No.155 Of 2006 4 (1934) 36 Bomlr 1185 12 CPK, J & BVLNC, J Crl.A.No.896 of 2014 views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.."
The law succinctly crystallized in this case has been consistently followed by this Court. On proper analysis of the ratio and findings of this case, it is revealed that the findings of the trial court are based on the fundamental principles of the criminal jurisprudence. Presumption of innocence in favour of the accused further gets reinforced and strengthened by the acquittal of the trial court. The appellate court undoubtedly has wide powers of re-appreciating and re- evaluating the entire evidence but it would be justified in interfering with the judgment of acquittal only when the judgment of the trial court is palpably wrong, totally ill- founded or wholly misconceived, based on erroneous analysis of evidence and non-existent material, demonstrably unsustainable or perverse.
46. This Court again in the case of Surajpal Singh & Others v. State5, has spelt out the powers of the High Court. The Court has also cautioned the Appellate Courts to follow well established norms while dealing with appeals from acquittal by the trial court. The Court observed as under:
"It is well established that in an appeal under S. 417 Criminal P.C., the High Court has full power to review the evidence upon which the order of acquittal was 5 AIR 1952 SC 52 13 CPK, J & BVLNC, J Crl.A.No.896 of 2014 founded, but it is equally well-settled that the presumption of innocence of the accused was further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons."
47. This Court reiterated the principles and observed that presumption of innocence of accused is reinforced by an order of the acquittal. The appellate court could have interfered only for very substantial and compelling reasons.
48. In Tulsiram Kanu v. The State6, this Court explicated that the appellate court would be justified in reversing the acquittal only when very substantial question and compelling reasons are present. In this case, the Court used a different phrase to describe the approach of an appellate court against an order of acquittal. There, the Sessions Court expressed that there was clearly reasonable doubt in respect of the guilt of the accused on the evidence put before it. Kania, C.J., observed that it required good and sufficiently cogent reasons to overcome such reasonable doubt before the appellate court came to a different conclusion.
49. In the same year, this Court had an occasion to deal with Madan Mohan Singh v. State of Uttar Pradesh7, wherein it said that the High Court had not kept the rules and principles of administration of criminal justice clearly before it and that therefore the judgment was vitiated by non-advertence to and mis-appreciation of various material facts transpiring in evidence. The High 6 AIR 1954 SC 1 7 AIR 1954 SC 637 14 CPK, J & BVLNC, J Crl.A.No.896 of 2014 Court failed to give due weight and consideration to the findings upon which the trial court based its decision.
50. The same principle has been followed in Atley v. State of U.P.8 (at pp. 809-10 para 5), wherein the Court said:
"It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal."
51. The question was again raised prominently in Aher Raja Khima v. State of Saurashtra9. Bose, J. expressing the majority view observed (at p.220):
"It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial court was wrong; Ajmer Singh v. 8 AIR 1955 SC 807 9 AIR 1956 SC 217 15 CPK, J & BVLNC, J Crl.A.No.896 of 2014 State of Punjab10, (at pp.77-78); and if the trial Court takes a reasonable view of the facts of the case, interference under S. 417 is not justifiable unless there are really strong reasons for reversing that view. Surajpal Singh v. State11 at 54."
52. In Balbir Singh v. State of Punjab12, this Court again had an occasion to examine the same proposition of law. The Court (at page 222) observed as under:
"It is now well settled that though the High Court has full power to review the evidence upon which an order of acquittal is founded, it is equally well settled that the presumption of innocence of the accused person is further reinforced by his acquittal by the trial Court and the views of the trial Judge as to the credibility of the witnesses must be given proper weight and consideration; and the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses must also be kept in mind, and there must be substantial and compelling reasons for the appellate Court to come to a conclusion different from that of the trial Judge."
Keeping in view the principle laid down in the judgment referred to above, we shall proceed to deal with the matter.
16. As seen from the record, the husband of the deceased Naga Malleswara Rao committed suicide about 12 days prior to the incident in question because of some quarrel with A-1. It appears that the said quarrel arose between A-1 and Naga 10 AIR 1953 SC 76 11 AIR 1952 SC 52 12 AIR 1957 SC 216 16 CPK, J & BVLNC, J Crl.A.No.896 of 2014 Malleswara Rao, because of alleged illicit intimacy of Naga Malleswara Rao with A-3, who is the wife of A-1. It is an admitted fact that after the incident, the deceased was living in the house of her husband while the house of the accused was said to be next to her house. It is also not in dispute that the incident in question took place at 4:00 A.M. on 15.11.2012, in which the deceased sustained burn injuries and thereafter, she died on 19.11.2012.
17. As stated earlier, there are three dying declarations of the deceased recorded by P.Ws.14, 15 and 16, which are marked as Exs.P-13, P-17 and P-25. Ex.P-17 is the statement of the deceased recorded by P.W.15 - Magistrate from 7:50 A.M. on 15.11.2012 while Ex.P-13 is the statement of the deceased recorded by P.W.14 - Head Constable at Government General Hospital at 8:00 A.M. while Ex.P-25 is also a statement of the deceased recorded by P.W.16 - Sub Inspector of Police in Government General Hospital at 8:00 A.M. Exs.P-13 and P-25 are verbatim same and there are no variations even in the word or sentence and both the statements were said to have been recorded at 8:00 A.M. Strangely, both the statements were endorsed by the doctor at the same time i.e. at 8:30 A.M. 17 CPK, J & BVLNC, J Crl.A.No.896 of 2014
18. This factual aspect namely recording of two statements by two different Police Officers at the same time at 8:00 A.M. on 15.11.2012 and both the statements being endorsed by the doctor at the same time i.e. at 8:30 A.M. appears to be quite strange more so, when the witnesses in their evidence do not speak about the same.
19. The evidence of P.W.14 show that on receipt of intimation about the admission of the injured at about 5:00 A.M., he proceeded to the hospital, but however, the doctor did not allow him to record the statement of the injured till 8:00 A.M. He claims to have waited in the hospital till 8:00 A.M. and thereafter, recorded the statement of the injured. After recording the statement of the injured, he obtained the endorsement of the doctor, which is placed on record as Ex.P-14. No explanation is forthwith coming from the doctor - P.W.18 to show as to why he did not allow P.W.14 - Head Constable to record the statements of the injured at 5:00 A.M. In fact, the evidence of P.W.18 is silent on this aspect though he claims to have been on duty from 8:00 P.M. on 14.11.2012 to 8:00 A.M. on 15.11.2012. But, on the other hand, his evidence shows that at 8:00 A.M., police recorded the statement of the injured, in which he made an endorsement marked as Ex.P-14. 18
CPK, J & BVLNC, J Crl.A.No.896 of 2014 Though P.W.16 in his evidence speaks about visiting the hospital on 15.11.2012 and recording the statement of the injured, the evidence of P.W.18 is silent on the said aspect.
20. A perusal of Ex.P-25 statement recorded by P.W.16 would show that the said statement was also recorded at 8:00 A.M. and an endorsement about the consciousness of the injured while recording the statement was made at 8:30 A.M. The endorsement on Ex.P-25 and Ex.P-14 are made by the same doctor i.e. P.W.18, but P.W.18 in his evidence speaks only about Ex.P-14. It is strange as to why there is no reference to Ex.P-25 in the statement and the endorsement made by him on Ex.P-25. Therefore, when the contents of Ex.P-25 and Ex.P-14 are of same verbatim and in view of the evidence of P.W.18, a doubt arises as to whether really P.W.16 recorded the statement of the injured on 15.11.2012. One fact which also requires to be noticed here is that if both the above statements came to be recorded at 8:00 A.M., but P.W.18 speaks only about one statement recorded by the police officer, a doubt arises as to whether really any statement was recorded by the police officer, more particularly, P.W.16 or whether he simply took the statement recorded by P.W.14 and made it part of the record as well. Apart from that, though two official witnesses claimed to 19 CPK, J & BVLNC, J Crl.A.No.896 of 2014 have recorded the statements of the injured at the same time, which is practically impossible, the same is not even spoken to by the doctor to that effect.
21. At this stage, one crucial circumstance that requires to be noted is the evidence of the Magistrate, who recorded the dying declaration and examined as P.W.15. In his evidence, he deposed regarding receipt of hospital intimation on 15.11.2012, at 7:40 A.M., proceeding to the Government General Hospital, Guntur at about 7:50 A.M., identifying the injured and recording the statement of the injured. He claims to have completed recording of the statement at about 8:00 A.M. and thereafter, obtained left thumb impression of the injured on the statement. Strangely, everything appears to be a tailor made. P.W.15 claims to have completed recording the statement of injured at 8:00 A.M. and the statement of the injured was endorsed by the very same doctor at 8:00 A.M. Further, the evidence of the Magistrate -P.W.15 shows that he reached the hospital at 7:50 A.M., identified the patient, put some preliminary questions to her and thereafter, recorded her statement running into one page, which according to him, it was over before 8:00 A.M. According to P.W.15, an endorsement was made by the doctor on Ex.P-17-Dying 20 CPK, J & BVLNC, J Crl.A.No.896 of 2014 Declaration at 8:00 A.M. As held above, there are number of suspicious circumstances, which we will discuss a little later.
22. Coming to the two dying declarations which are on record, namely Exs.P-17 and P-13, as observed by us earlier, the first dying declaration ended at 8:00 A.M., while the second dying declaration was also recorded at 8:00 A.M. Strangely, in all the three dying declarations, the doctor made an endorsement about the consciousness of the injured at 8:30 A.M. Coming to the contents of the three dying declarations, out of the two dying declarations, which are placed on record as Exs.P-17 and P-13, the first dying declaration - Ex.P-17 was recorded by the Magistrate wherein the deceased is said to have stated that on 15.11.2012, at early hours, at about 4:00 A.M., while she was sleeping in her house, all the three accused poured kerosene on her body and when she woke up, they threw a lighted match stick on her as a result of which, she sustained burn injuries all over her body and that all of them have done it to grab her property. It further discloses that at about 11 days back, her husband died. This dying declaration, which is recorded by the Magistrate started at 7:50 A.M. and ended at 8:00 A.M. There is no endorsement of the Doctor with regard to the mental state of mind prior to recording of the dying declaration but the 21 CPK, J & BVLNC, J Crl.A.No.896 of 2014 contents of the dying declaration show as if three accused poured kerosene and when the deceased woke up, her mother- in-law set her on fire with an intention to grab her property.
23. The next dying declaration, which is placed on record as Ex.P-13, was recorded by P.W.14 - Head Constable, is something different. While narrating the history of the family and as to the manner in which her husband committed suicide, it is stated that on the fateful day, at 4:00 A.M., while she was sleeping in the house, the three accused came into her house. Then, her brother-in-law poured kerosene and mother-in-law set her on fire. She raised cries and came out of the house. Then, her mother - P.W.1 came from her house and also raised cries. According to her, one Murali and surrounding people also came and extinguished the fire. According to her, her mother and relatives shifted her to Emergency Ward of Guntur General Hospital through a mini van of one Guntupalli Rambabu. It is also stated in the dying declaration that her mother-in-law, brother-in-law and co-sister, with an evil intention to grab the property, poured kerosene and set her on fire, which statement, as stated earlier, was at 8:00 A.M. and endorsement of the Doctor was at 8:30 A.M. In this dying declaration, which was given immediately after Ex.P-17, though it mentions about all 22 CPK, J & BVLNC, J Crl.A.No.896 of 2014 the three accused, but a specific role is attributed to A-1 in pouring the kerosene which was not there in the earlier dying declaration recorded by the Magistrate.
24. At first blush, the argument of the learned counsel for the appellant that in view of the consistency with regard to the involvement of mother-in-law and in view of the law laid down by the Hon'ble Supreme Court that the dying declaration, which inspires confidence in the mind of the Court, can be taken into consideration for the purpose of convicting the accused was found acceptable.
25. But the defence of the accused is that the deceased committed suicide and the dying declarations are an outcome of tutoring. In order to substantiate the same, we once again perused the dying declarations recorded in the vernacular language or in the language made by the deceased. A perusal of the two dying declarations, which are recorded by the Magistrate as well as by the Head Constable, clearly revealed that the incident happened inside the house. In other words, the victim categorically stated that all the three accused came into her room and then, set her on fire. Therefore, the argument of the learned counsel for the appellant that the 23 CPK, J & BVLNC, J Crl.A.No.896 of 2014 incident must have happened in the verandah may not be correct.
26. Question now is how the three accused entered into the house. It is nobody's case that the deceased was in the habit of getting up in early hours and opening the door. It is not the case of the prosecution that the door was opened which enabled the accused to enter into the house. Therefore, the prosecution has not proved the crucial circumstance as to how the three accused entered into the house of the deceased.
27. The second ground which assumes importance is the plea of the accused that the deceased committed suicide having lost her husband about 11 days back. It is no doubt true that in the dying declarations recorded, the deceased has stated that the three accused poured kerosene and one of them set fire to her. But the Post Mortem Doctor, who was examined as P.W.13, in his evidence, categorically deposed that the injuries on the body of the deceased are suicidal in nature. It would be appropriate to extract the same, which are as under:-
"Question:- If a person lying on the surface is set fire by pouring kerosene, whether the injuries mentioned in Ex.P11 are possible?
Answer:- In such cases, the injuries mentioned in Ex.P11 are generally not possible. It is not true to suggest that in 24 CPK, J & BVLNC, J Crl.A.No.896 of 2014 Dermo Epidermo burns total skin will be burned. The witness adds in some places epidermis and dermis will involve. I did not mention specifically in Ex.P11 dermis and epidermis are involved. My opinion about the approximate time of death is not mentioned in Ex.P.11."
"... It is true the injuries found on the deceased will generally occur in suicidal cases. After securing the requisition and inquest report, I commenced post mortem."
From the answers elicited in the cross examination of the doctor, it is very much clear that the injuries found on the deceased would generally occur in suicidal cases. It may be true that the contents of the Post Mortem Report or the evidence of the doctor is only a opinion evidence but having regard to the factual position of the case, namely as to whether it is a case of suicide or homicide, we feel that the evidence of doctor assumes some importance and that the plea taken by the accused appears to be probable.
28. Further, the motive, which also places a crucial role in the case on hand, requires to be dealt with. In both the dying declarations and in the oral evidence, the witnesses deposed that the accused have caused the death of the deceased for the sake of the property but strangely, the evidence of P.Ws.1 and 2 would show that the entire property of Naga Malleswara Rao is in the custody of P.Ws.1 and 2. Further, the admissions in the 25 CPK, J & BVLNC, J Crl.A.No.896 of 2014 evidence of P.Ws.1 and 2 show that A-2 is residing separately from A-1 and her son-in-law is at a distance of half kilometer from their house. After the death of her husband, A-2 is said to have gifted the properties inherited from her husband to A-1 and Naga Malleswara Rao. She further admits that her husband was indebted to several people in the village and that her husband is an alcoholic and gambler. She further admits that she did not speak before the police that when she came out of the house, saw A-1 to A-3 coming out of their house and on seeing them, they ran away as in Ex.D-1. She further admits in the cross examination that she and her husband are cultivating the land of her son-in-law and are in possession of his house. From the answers elicited in the cross examination, two things follow. Firstly, the allegations that the deceased was done to death for the purpose of property appears to be incorrect and secondly, the version of P.W.1 that she saw A-1 to A-3 leaving the house and that on seeing them, they ran away is incorrect as the said fact was not mentioned in the earlier statement.
29. Having regard to the above findings, we see no grounds to interfere with the impugned judgment and the appeal is liable to be dismissed.
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CPK, J & BVLNC, J Crl.A.No.896 of 2014
30. Accordingly, the Criminal Appeal is dismissed confirming the judgment, dated 07.04.2014, in Sessions Case No.170 of 2013 passed by the learned III Additional Sessions Judge, Guntur.
Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR ___________________________________ JUSTICE B.V.L.N.CHAKRAVARTHI Date : 15.11.2022 AMD/MS 27 CPK, J & BVLNC, J Crl.A.No.896 of 2014 229 THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI CRIMINAL APPEAL No.896 of 2014 Date : 15.11.2022 AMD/MS