Telangana High Court
Mallepaga Yadaiah, Mahabubnagar Dt., vs State Of Ap., Rep. Pp. Hyd., on 30 August, 2022
Author: Shameem Akther
Bench: Shameem Akther
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL APPEAL No.659 OF 2013
JUDGMENT:(Per Hon'ble Dr. Justice Shameem Akther) This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C'), is filed by the appellant/A1, aggrieved by the judgment, dated 06.03.2013, passed in S.C.No.202 of 2012 by the Sessions Judge, Mahabubnagar, whereby, the Court below, while acquitting A2 and A3 of the offences under Sections 302 r/w 34 and 506 of IPC, convicted the appellant/A1 of the offences under Sections 302 and 506 of IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.100/- of the offence under Section 302 of IPC; and to undergo rigorous imprisonment for six months of the offence under Section 506 of IPC. Both the sentences were directed to be run concurrently.
2. We have heard the submissions of Sri P.Prabhakar Reddy, learned counsel for the appellant/A1, Sri C.Pratap Reddy, learned Public Prosecutor appearing for the respondent/State and perused the record.
3. The case of the prosecution, in brief, is as follows:
Smt. Mallepaga Meenakshi (hereinafter referred as 'the deceased') is the wife of appellant/A1, daughter-in-law of A2, mother of Dr.SA,J & EVV, J 2 Crl.A.No.659 of 2013 PW.1-Kumari Mallepaga Manasa and sister of PW.2-S.Manohar. A3 is the second wife of appellant/A1. The marriage between appellant/A1 and the deceased was performed about 18 years prior to the incident. During their wedlock, the couple was blessed with PW.1 and LW.2- Kumari Mallepaga Mamatha (not examined). After marriage, the deceased and the appellant/A1 lived together for some time, subsequently, she was subjected to ill treatment and harassment by the appellant/A1 and A2 for want of additional dowry. Four years prior to the incident, appellant/A1 contacted second marriage with A3 and in that regard a criminal case was registered against appellant/A1 for the offence of bigamy. The deceased also filed a maintenance case against appellant/A1, claiming maintenance for her and her children, i.e., PW.1 and LW.2 and the Court concerned awarded monthly maintenance of Rs.2,500/-. The deceased received maintenance for two to three months, subsequently, appellant/A1 did not pay the maintenance amount. In that regard, a galata took place between the deceased and appellant/A1. The accused intimidated the deceased to enter into compromise in the maintenance case, if not, they would kill her. On the intervening night of 01/02.08.2010 at about 01.00 AM, while the deceased was sleeping in the house along with her children (PW.1 & LW.2), A1 to A3 went there, asked the deceased to compromise the Court case, for which, she bluntly refused. Then, the appellant/A1 and Dr.SA,J & EVV, J 3 Crl.A.No.659 of 2013 A3 poured kerosene on the deceased, appellant/A1 set her ablaze, while A2 caught hold PW.1 and LW.2. When the deceased was caught in flames, the accused left the place and later, PW.1 and LW.2 extinguished the flames with water. One Mallepaga Srinu, a neighbour, called ambulance and shifted the deceased to Government Hospital, Mahabubnagar, for treatment.
4. PW.8-SI of police received information from the Outpost, Government Hospital, Mahabubnagar, rushed to the hospital immediately, found the burn injured, recorded the statement of the deceased at the hospital under Ex.P.7, basing on the same, registered Ex.P8-FIR against the accused/A1 to A3 of the offences under Sections 307 & 34 of IPC and took up investigation. During the course of investigation, PW.8 visited the scene of offence, conducted scene of offence panchanama in the presence of mediators, seized material objects, again visited Government Hospital, Mahabubnagar and recorded the statement of the deceased under Section 161 of Cr.P.C. in the presence of witnesses, affected the arrest of the accused/A1 to A3 on 03.08.2010 and sent them for judicial remand. The deceased succumbed to the burn injuries on 08.08.2010 at 07:45 hours. On receipt of the death intimation, PW.8 submitted section alteration memo and examined and recorded the statements of LW.4, LW.5 and Dr.SA,J & EVV, J 4 Crl.A.No.659 of 2013 PW.2, conducted inquest panchanama of the deceased in the presence of mediators and handed over the case file to PW.9-CI of Police for further investigation. PW.9 collected the Postmortem Examination Report and dying declaration of the deceased and after completion of investigation, laid charge sheet before the Judicial Magistrate of First Class, Mahabubnagar, against the accused/A1 to A3 of the offence under Section 302 r/w 34 of IPC.
5. The Magistrate had taken cognizance of the case in PRC No.73 of 2010 and committed the same to the Court of Session, Mahabubnagar, since the offence under Section 302 of IPC is exclusively triable by the Court of Session. The Court of Session, Mahabubnagar (Court below) numbered the case as S.C.No.202 of 2012 and proceeded further in the matter.
6. The Court below, after appearance of the accused/A1 to A3 and after hearing both sides, framed charges against the accused/A1 to A3 under Sections 302 r/w 34 and 506 of IPC, read over and explained to them in Telugu, for which, they pleaded not guilty and claimed to be tried.
Dr.SA,J & EVV, J 5 Crl.A.No.659 of 2013
7. To prove the guilt of the accused, the prosecution examined PWs.1 to 10 and got marked Exs.P1 to P13, besides case properties, M.Os.1 and 2.
8. PW.1-Kumari Mallepaga Manasa is the daughter of the deceased and an eye witness. PW.2-Sirisinolla Manoher is the brother of the deceased and a circumstantial witness. PW.3-Smt.Abkari Anjamma and PW.4-Dharpalli Gopal are panch witnesses for inquest panchanama. PW.5-Kosgi Anjaneyulu and PW.6-Manthri Vishnu are panch witnesses for scene of offence panchanama. PW.7- Ch.Yugandhar is the Magistrate who recorded the dying declaration of the deceased. PW.8-C.Mahesh Kumar is the first investigation officer who issued Ex.P8-FIR. PW.9-K.Muthaiah is the CI of police, who laid charge sheet in this case. PW.10-Dr.Gnana Prasuna is the doctor who conducted autopsy over the dead body of the deceased. Ex.P1 is the signature of PW.3 on inquest panchanama, dated 08.08.2010. Ex.P2 is the signature of PW.4 on inquest panchanama, dated 08.08.2010. Ex.P3 is the signature of PW.5 on scene of offence panchanama, dated 02.08.2010. Ex.P4 is the signature of PW.6 on the scene of offence panchanama, dated 02.08.2010. Ex.P.5 is the MLC Intimation from the Government Hospital, Mahabubnagar, to record the statement of M.Meenakshi. Ex.P.6 is the dying declaration of the deceased, dated Dr.SA,J & EVV, J 6 Crl.A.No.659 of 2013 02.08.2010. Ex.P7 is the complaint statement of the injured M.Meenakshi, dated 02.08.2010. Ex.P.8 is the FIR in Crime No.92 of 2010 of Nawabpet Police Station, dated 02.08.2010. Ex.P.9 is the scene of offence panchanama, dated 02.08.2010. Ex.P10 is the 161 Cr.P.C. statement of the injured M.Meenakshi, dated 02.08.2010. Ex.P11 is the Section Alteration Memo. Ex.P12 is the Inquest Panchanama of the deceased, dated 08.08.2010. Ex.P13 is the PME Report of the deceased, dated 08.08.2010. MO.1 is Kerosene Tin and MO.2 is the Match Box.
9. When the accused/A1 to A3 were confronted with the incriminating material appearing against them and were examined under Section 313 of Cr.P.C., they denied the same and pleaded innocence. On behalf of the accused/A1 to A3, no evidence, either oral or documentary, was adduced.
10. The trial Court, having considered the submissions made and the evidence available on record, vide impugned judgment, dated 06.03.2013, while acquitting A2 and A3 of the offences under Sections 302 r/w 34 and 506 of IPC under Section 235(1) of Cr.P.C., convicted the appellant/A1 of the offences under Section 302 and 506 of IPC and sentenced him as stated supra. Aggrieved by the same, A1 preferred the present appeal.
Dr.SA,J & EVV, J 7 Crl.A.No.659 of 2013
11. Learned counsel for the appellant/A1 would contend that the impugned judgment is contrary to law, weight of evidence and probabilities of the case. No credibility can be given to the evidence of PW.1, as she was aged about 14 years as on the date of giving evidence. Further, she is a tutored witness. PWs.1 and 2, being the daughter and brother of the deceased, are interested witnesses and as such, their evidence cannot be taken into consideration. The alleged incident took place in the midnight and there was no possibility of PW.1 witnessing the same. There are inconsistencies in between Ex.P6-dying declaration of the deceased recorded by the Magistrate and Ex.P7- complaint statement of the deceased recorded by PW.8-investigation officer. Ex.P6-dying declaration recorded by the Magistrate does not inspire confidence to act upon. Further, PWs.3 and 4, who are mediators for inquest panchanama, and PWs.5 and 6, who are mediators for scene of offence panchanama, turned hostile and did not support the case of prosecution. The prosecution failed to establish the motive on the part of the appellant/A1 to cause the subject death of the deceased. The Court below, while rightly acquitting A2 and A3 in this case by extending benefit of doubt, erroneously convicted the appellant/A1. Further, the person who shifted the deceased to hospital was not examined by the prosecution. The deceased died after eight Dr.SA,J & EVV, J 8 Crl.A.No.659 of 2013 days from the date of the alleged incident. Therefore, the alleged offence would not fall under Section 302 of IPC. The prosecution failed to prove the guilt of the appellant/A1 beyond all reasonable doubt. The trial Court did not appreciate the evidence on record in right perspective and came to an erroneous conclusion and convicted and sentenced the appellant/A1 of the offences under Section 302 and 506 of IPC. It is a fit case to set aside the conviction and sentence recorded against the appellant/A1 and ultimately, prayed to set aside the conviction and sentence recorded against the appellant/A1 of the offences under Sections 302 and 506 of IPC vide the impugned judgment, and acquit him of the said offences.
12. Per contra, the learned Public Prosecutor would submit that PW.1 is the daughter of the deceased and the appellant/A1. She is a direct witness to the alleged offence. Her evidence is cogent and convincing, which clearly demonstrate that the appellant/A1 poured kerosene on the deceased and set her ablaze. Consequently, the deceased suffered 66-86% burn injuries and succumbed to the same after eight days of the burning incident. There is ample oral and documentary evidence on record to establish the guilt of the appellant/A1 of the charges framed against him. There is consistency and corroboration in Ex.P6-dying declaration of the deceased recorded by the Magistrate and Ex.P7- Dr.SA,J & EVV, J 9 Crl.A.No.659 of 2013 complaint statement of the deceased recorded by PW.8-invstigation officer. It is settled law that if the dying declaration inspires confidence and is free from any tutoring and if no taint is attached to it, it can form sole basis for conviction. There are no procedural irregularities in recording Ex.P.6-dying declaration by the Magistrate. The deceased was burnt to death by the appellant/A1 by pouring kerosene on her and setting her ablaze. PW.2, brother of the deceased, also deposed before the Court that the deceased told him that the appellant/A1 poured kerosene on her and set her ablaze, when she refused to compromise the maintenance case filed by her against the appellant/A1. The motive as well as the intention to cause the subject death by the appellant/A1 was proved by the prosecution beyond all reasonable doubt. There are no inconsistencies or omissions in the evidence of prosecution witnesses. The trial Court is justified in convicting and sentencing the appellant/A1 of the offences under Sections 302 and 506 of IPC. There are no circumstances or material omissions to vary the impugned judgment and ultimately, prayed to dismiss the appeal by confirming the conviction and sentence recorded against the appellant/A1 vide the impugned judgment.
13. In view of the above rival submissions, the points that arise for determination in this appeal are as follows:
Dr.SA,J & EVV, J 10 Crl.A.No.659 of 2013
1. Whether the appellant/A1 had caused burn injuries to the deceased on the intervening night of 01/02.08.2010 at the house of the deceased, situated at Nawabpet Village and Mandal?
2. Whether the appellant/A1 intimidated the deceased in relation to payment of arrears of maintenance before causing burn injuries?
3. Whether the prosecution was able to prove the guilt of the appellant/A1 beyond all reasonable doubt of the offences under Sections 302 and 506 of IPC?
4. Whether the conviction and sentence recorded against the appellant/A1 for the offences under Sections 302 and 506 of IPC is liable to be modified?
5. To what result?
POINTS:
14. It is the consistent version of PWs.1, 2, 7 and 8 that the appellant/A1 poured kerosene on the deceased and set her ablaze. PW.10-doctor, who conducted autopsy over the dead body of the deceased, deposed in her evidence that deceased sustained 66-86% burn injuries and opined that the death was due to 'hypovolemic shock secondary to burns'. The ocular evidence of P.Ws.1, 2, 7 and 8 corroborates the medical evidence of PW.10-doctor. Further, there is consistency and corroboration in the oral evidence of PW.10-doctor and Ex.P.13-PME Report issued by her. In view of the above, it can be safely concluded that the subject death of the deceased is homicidal.
Dr.SA,J & EVV, J 11 Crl.A.No.659 of 2013
15. Now the question that requires answer is as to whether the appellant/A1 caused burn injuries to the deceased on the intervening night of 01/02.08.2010 at the house of the deceased, situated at Nawabpet Village and Mandal. In order to answer the same, it is necessary to discuss the evidence on record.
16. PW.1 is the daughter of the deceased and the appellant/A1. She deposed that during the life time of her mother (deceased), the appellant/A1 married A3. During the life time of her mother, her mother filed a criminal case against A1 to A3. The appellant/A1 was directed to pay Rs.2,500/- towards maintenance to her mother. The appellant/A1 paid maintenance @ Rs.2,500/- per month for 2 to 3 months, subsequently, he did not pay the maintenance amount. Later her mother filed a petition before the JFCM Court, Mahabubnagar, for arrears of maintenance. On 01.08.2010 midnight, the appellant/A1 and A2 came to her house and insisted the deceased to enter into compromise in the maintenance case, but her mother did not accept for the same. Then, the appellant/A1 poured kerosene on her mother and lit fire, resulting in burn injuries. Herself and LW.2 (her sister Kumari Mallepaga Mamatha) tried to rescue their mother, but A2 caught hold of them. After the accused left the house, PW.1 and LW.2 put off the flames by pouring water on their mother. Then, PW.1 and LW.2 Dr.SA,J & EVV, J 12 Crl.A.No.659 of 2013 approached Malleogu Srinu, who is the son of senior paternal aunt of PW.1 and informed the incident to him, who, in turn, informed the incident to the police. In the mean time 108 Ambulance service was called and her mother was taken in the said ambulance to Government Hospital, Mahabubnagar, where, she succumbed to burn injuries one week after the incident, while undergoing treatment. PW.1 further deposed that she can identify the kerosene tin used by the appellant/A1 in the commission of offence.
17. PW.1 stated in her cross-examination that the accused are residing in a separate house in their village, and they (deceased, PW.1 and LW.2) are residing in the house of father of the appellant/A1. She denied the suggestion that due to quarrelsome nature of deceased, the appellant/A1 was residing separately. She also denied the suggestion that her mother was not having sound mental balance and as such, she poured kerosene on herself and commit suicide. Though PW.1 was cross-examined at length, nothing was elicited to disprove her testimony in her examination-in-chief.
18. Learned counsel for the appellant/A1 contended that no credibility can be given to the evidence of PW.1, as she was aged about 14 years as on the date of giving evidence and that she is a tutored witness. We Dr.SA,J & EVV, J 13 Crl.A.No.659 of 2013 do not see any force in the said contention. Section 118 of the Evidence Act lays down a general rule that every person, irrespective of his age, is competent to testify, unless he is found incompetent to testify due to the reasons mentioned therein. The law regarding the testimony of a child witness is well settled. A conviction can be based on the basis of testimony of a child witness. A child's testimony can be relied upon, even in the absence of oath, if he/she is capable of understanding the nature of the questions asked and gives rational answers thereof. The only precaution, which the Court should bear in mind while assessing the evidence of a child witness, is that the witness must be reliable and his/her demeanor must be like any other competent witness and there is no likelihood of he/she being tutored. Further, there is no rule or practice that in every case the evidence of child witness should be corroborated before conviction can be allowed to stand, but as a rule of prudence, the Court always finds it desirable to have corroboration to such evidence. Before recording the statement of a child witness, the Judge recording his/her statement has to satisfy that the witness is capable to depose. It is not the law that if a witness to a particular incident is a child, his/her evidence shall be rejected even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection, because a child is susceptible to be swayed by what Dr.SA,J & EVV, J 14 Crl.A.No.659 of 2013 others tell him/her. In the instant case, before recording the statement of PW.1, the trial Judge observed that "the witness appears to be 15 years and she is studying 8th standard. The witness is capable of understanding things. Therefore, this court is satisfied to record her evidence" and thereafter, proceeded to record her statement, that too after administering oath. Hence, we are not convinced with the contention of the learned counsel for the appellant/A1 that no credibility can be given to the evidence of PW.1, as she was aged about 12 years as on the date of the incident. Further, PW.1 is a natural witness. Her presence at the scene of offence is possible and probable. She had narrated the incident in a most natural way. The manner in which PW.1 narrated the incident inspires confidence of this Court and there exists no likelihood of her being tutored by somebody. Further, in Ex.P6-dying declaration of the deceased recorded by the Magistrate, there is a specific mention of PW.1 and her sister (LW.2) putting off the flames by pouring water on her mother. The evidence of PW.1 does not suffer from any infirmity. There are no material omissions and contradictions in her evidence. Her evidence is corroborated by Ex.P6- dying declaration of the deceased and Ex.P7-complaint statement of the deceased recorded by SI of Police (PW.8). The appellant/A1 is the father of PW.1. There are no circumstances for PW.1 to implicate her father in a case of this nature. The evidence of PW.1 is truthful, Dr.SA,J & EVV, J 15 Crl.A.No.659 of 2013 reliable and inspires confidence. Hence, we are not impressed with the submission of the learned counsel for the appellant/A1 that PW.1 is a tutored witness.
19. PW.2 is the brother of the deceased. He deposed that his sister (deceased) filed two cases against the appellant/A1 for marrying A.3 for second time and also filed a maintenance case. The bigamy case filed against the appellant/A1 ended in acquittal, but the appellant/A1 was directed to pay maintenance @ Rs.2,500/- per month to the deceased, PW.1 and LW.2. The appellant/A1 paid the maintenance only for two or three months, subsequently he did not pay the monthly maintenance. The deceased was maintaining herself and her two daughters by attending coolie work. The deceased and her two daughters were residing in one house and the appellant/A1, his mother (A2) and A3 were residing in another house. In the year 2010, at about 4 or 5 AM, he received a call from a boy by name Srinu about sustaining burn injuries by the deceased and she was taken to Government Hospital, Mahabubnagar, for treatment. Immediately, he rushed to hospital and found his sister with burn injuries. He enquired with the deceased, how she sustained burn injuries. The deceased told him that on that day, the accused came to the house of the deceased and asked her to enter into compromise in the maintenance case for Dr.SA,J & EVV, J 16 Crl.A.No.659 of 2013 which, she bluntly refused, therefore, the appellant/A1 poured kerosene on her and lit fire. A2 caught hold of PW.1 and LW.2. The deceased died five or six days after the incident, while undergoing treatment at Government Hospital, Mahabubnagar. P.W.2 was also cross-examined at length, but nothing useful was elicited to disprove his testimony in his examination-in-chief.
20. PWs.3 to 6 are the panch witnesses for Inquest Panchanama and Scene of Offence panchanama. They turned hostile and did not support the case of prosecution. It is settled law that if panch witnesses turn hostile, the evidence of the investigating officer who completed procedural formalities in their presence would not get vitiated. The evidence of investigation officer and the documents prepared during investigation in relation to conduct of scene of offence panchanama and inquest panchanama over the dead body of the deceased can be examined and can be relied on. In other words, the panch witnesses turning hostile would not be fatal to the case of prosecution.
21. PW.7 is the Magistrate who recorded the dying declaration of the deceased under Ex.P6. He deposed that on 02.08.2010 at about 05:25 AM, he received Ex.P5-MLC intimation from the Government Hospital, Mahabubnagar, to record the statement of one injured by name M.Meenakshi. He reached Government Hospital at 05:35 AM and found Dr.SA,J & EVV, J 17 Crl.A.No.659 of 2013 the injured with the help of duty doctor who was undergoing treatment. He put simple questions to her to ascertain about the state of mind of the burn injured. She gave proper answers to his questions in the presence of duty doctor. The duty doctor also certified about the state of mind of the burn injured. Prior to recording the statement, he was satisfied to record the statement of the injured by name M.Meenakshi. She stated before him that she has filed a maintenance case against her husband (appellant/A1) and the Court also directed her husband to pay monthly maintenance of rate of Rs.2,500/- per month; Besides maintenance case, she also filed another case for bigamy and it ended in acquittal; her husband (A1) insisting her to enter into compromise in the maintenance case; On 30th July, her husband (A1) did not attend the Court; she filed another petition for claiming arrears of maintenance against her husband (A1); since her husband (A1) did not attend the Court, the Court issued warrant against him; On knowing the same, her husband and A3 came to her house and asked her to enter into compromise and also started galata and both of them beat her; her husband (A1) picked up Gas Oil (kerosene) and poured on her and lit fire with match stick; Immediately, she raised cries, in the meantime, her daughters put off the flames; her husband (A1) and A3 left the house after the incident; the incident had happened at 1 AM on that day; her husband (A1) and his another wife (A3) and mother-in-
Dr.SA,J & EVV, J 18 Crl.A.No.659 of 2013 law (A2) are alone responsible for the causing of burn injuries to her. PW.7 read over the contents of the statement to the injured and the injured admitted the same to be true. Then, he obtained right thumb impression of the injured Meenakshi in Ex.P6 statement of the injured recorded by him in the Government Hospital, Mahabubnagar. The duty doctor also certified that the injured was conscious state of mind while recording her statement. He concluded recording the statement of the injured at 06:10 AM. PW.7 further deposed that he had taken all precautions while recording Ex.P6 statement of the injured Meenakshi and that except himself, his attender and the duty doctor, none were present at the time of recording the statement of the injured Meenakshi. In his cross-examination, PW.7 stated that the declarant did not attribute specific acts against A2 and A3, but the declarant stated that A1 and A3 beat her. The declarant did not state before him about the presence of A2 in her house at the time of the incident. PW.7 categorically denied the suggestion that the injured Meenakshi was not in a fit state of mind to give statement as she was under the influence of pain killing drugs. PW.7 also denied the suggestion that Ex.P6 came into existence out of the tutoring by relatives.
22. PW.8-SI of police is the first investigating officer. He deposed that on 02.08.2010, during early hours, he received VHF set Dr.SA,J & EVV, J 19 Crl.A.No.659 of 2013 information from Outpost Government Hospital, Mahabubnagar, about sustaining of burn injuries by Meenakshi. Immediately, he rushed to the hospital, found the burn injured, recorded her statement under Ex.P7, returned to the police station and registered a case in Crime No.92/2010 basing upon Ex.P7, issued Express FIR to all the concerned, visited the scene of offence and conducted scene of offence panchanama in the presence of mediators, seized MO.1-Kerosene Tin and MO.2-Match Box at the scene of offence, again he visited hospital and recorded the statement of injured under Section 161 Cr.P.C under Ex.P.10, later recorded the statements of PW.1 and LW.2, affected arrest of the accused on 03.08.2010 and sent them to judicial remand, on receipt of death intimation of Meenakshi on 08.08.2010, altered the section of law from Section 307 r/w 34 of IPC to Section 302 r/w 34 IPC, recorded the statements of LW.4, LW.5 and PW.2, conducted inquest panchanama on the person of the deceased under Ex.P12 in the presence of mediators and handed over the rest of investigation to PW.9. PW.8 was cross-examined at length, wherein he denied the suggestion that Mallepagu Srinu informed him about the burn injuries sustained by Meenakshi. He also denied the suggestion that the injured Meenakshi told him that she was vexed with her life and committed suicide by pouring kerosene and lit fire. He also denied the suggestion that the injured was shifted to hospital in his Jeep, but he Dr.SA,J & EVV, J 20 Crl.A.No.659 of 2013 stated that his patrolling staff brought the injured Meenakshi to some distance and later she was shifted in 108 ambulance.
23. PW.9 is another investigation officer. He deposed that he verified the investigation done by PW.8 and found to be on correct lines and that after collecting PME Report and dying declaration of the deceased and after completion of investigation, filed charge-sheet before the Court concerned.
24. PW.10 is the doctor who conducted autopsy over the dead body of the deceased and issued Ex.P13-PME Report of the deceased. She deposed that she received requisition from the SI of Police, Nawabpet, on 08.08.2010 at 01:40 PM and on the same day at 01:50 PM, she conducted Post-mortem Examination on the person of the M.Meenakshi in the Government Hospital, Mahabubnagar and found the following burn injuries:
Head and neck at 7-9%. Chest front and back at 15-18%. Abdomen at 15-18%. Upper limbs at 13-18%. Right thigh at 6- 9%. Left thigh at 6-9%. Genitalia at 1%. Total percentage of burns 66-86%.
She further deposed that the deceased died due to "Hypovolemic shock secondary to burns". The time of death is 5 to 8 hours prior to Postmortem Examination. Though PW.10 was cross-examined, nothing was elicited to discredit her testimony in her examination-in-chief.
Dr.SA,J & EVV, J 21 Crl.A.No.659 of 2013
25. It is contended on behalf of the appellant/accused that PWs.1 and 2 are interested witnesses and therefore, their evidence cannot be taken into consideration. The mere fact that PWs.1 and 2 are interested witnesses would not by itself be sufficient to discard their evidence straightaway unless it is proved that their evidence suffers from serious infirmities. Their evidence should be subjected to a close scrutiny and mechanical rejection of the evidence of witnesses on the sole ground that they are interested witnesses would invariably lead to miscarriage of justice. In the instant case, PW.1 deposed that the appellant/A1 poured kerosene on the deceased and set her ablaze and caused burn injuries. PW.2 also deposed that when he enquired with the deceased in the hospital as regards the burn injuries, the deceased told him that the appellant/A1 poured kerosene on her and set her ablaze. The evidence of PWs.1 and 2 corroborates the evidence of PW.7-investigating officer and the medical evidence of PW.10-doctor. The recitals of Ex.P6-dying declaration of the deceased recorded by a Magistrate and Ex.P7-complaint statement of the injured/deceased also corroborate the evidence of PWs.1 and 2. PW.10-doctor also opined that the cause of death was "Hypovolemic shock secondary to burns". Further, there is no reason for PWs.1 and 2, who happens to be the daughter and brother-in-law respectively of the appellant/A1, to depose Dr.SA,J & EVV, J 22 Crl.A.No.659 of 2013 falsely against the appellant/A1 in a case of this nature. So, the evidence of PWs.1 and 2 coupled with the medical evidence reveals that the appellant/A1 caused burn injuries to the deceased on the intervening night of 01/02.08.2010 at the house of the deceased situated at Nawabpet Village and Mandal and the deceased succumbed to those injuries on 08.08.2010.
26. It is also contended on behalf of the appellant/A1 that Ex.P6- dying declaration of the deceased does not inspire confidence to act upon. Here, it is apt to state that law relating to dying declaration is well settled. Statements made by a dying person as to the cause of his/her death, has been accorded special sanctity by the Legislature which should, on first principles, be respected unless there are clear circumstances brought out in the evidence to show that the dying declaration was not reliable. If the dying declaration is found to be voluntary, reliable and made in a fit state of mind, it can form sole basis of conviction and can be relied upon without any corroboration. The principle on which dying declaration is admitted in evidence is indicated in legal maxim "nemo moriturus proesumitur mentiri", which means that "a man will not meet his maker with a lie in his mouth". Great solemnity and sanctity is attached to the words of a dying person because a person who is about to say last words of his life is not likely Dr.SA,J & EVV, J 23 Crl.A.No.659 of 2013 to tell lies or concoct a case, so as to implicate an innocent person. It is said that "Truth sits upon the lips of a dying man". General principle on which the dying declaration is admitted in evidence is that they are the declarations made in extremity, when the person is at the point of death, and when every hope to survive in his mortal world is gone, when every motive of speaking falsehood is silenced and mind is induced by the most powerful consideration to speak the truth, situation is so solemn, that the law considers the same as creating an obligation equal to that of a positive oath administered in a Court of justice. It is for this reason that the statement of a dying person is accepted as such, without being put to the test of cross examination.
27. In Sham Shankar Kankaria Vs. State of Maharashtra1, the Hon'ble Apex Court summed up several previous judgments governing dying declaration as follows:
a) "There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v.
State of M.P.[(1976) 3 SCC 104]);
b) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 and Ramawati Devi v. State of Bihar [(1983)1 SCC 211]);
c) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. 1 (2006) 13 SCC 165 Dr.SA,J & EVV, J 24 Crl.A.No.659 of 2013 (See K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618]);
d) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P. [(1974) 4 SCC 264]);
e) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P. [1981 Supp SCC 25]);
f) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P. [(1981) 2 SCC 654]);
g) Merely because the dying declaration does not contain the details as to the occurrence, it is not to be rejected (See State of Maharashtra Vs. Krishnamurti Laxmipati Naidu [(1980) Supp SCC 455])
h) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar [1980 Supp SCC 769]);
i) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P. [1988 Supp SCC 152]);
j) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan [(1989) 3 SCC 390]);
k) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra [(1982) 1 SCC 700])"
In the instant case, PW.7-Magistrate who recorded Ex.P6-dying declaration of the deceased categorically deposed in his evidence that the deceased gave proper answers to his questions in the presence of duty doctor and that the duty doctor also certified about the state of Dr.SA,J & EVV, J 25 Crl.A.No.659 of 2013 mind of the injured Meenakshi. He also denied the suggestion that the injured Meenakshi was not in a fit state of mind to give statements. Further, a perusal of Ex.P6 reveals that PW.7-Magistrate had put some questions to the injured Meenakshi before recording her dying declaration to which, the injured Meenakshi gave proper replies. Then, PW.7-Magistrate endorsed on Ex.P6 that "on considering the above questions, I am of the opinion that she is conscious, coherent and fit state of mind to give statement", and then proceeded to record her statements. Further, there is also endorsement of the duty doctor on Ex.P6-dying declaration of the deceased recorded by the Magistrate, which reads as follows:
"Certificate of duty doctor:
She is conscious, coherent & in fit condition to give the statement Sd/-
Dr.G.Bala Sreenivas CAS Under these circumstances, we are satisfied that Ex.P6-dying declaration of the deceased is voluntary, trustworthy, reliable, not the result of tutoring, prompting or imagination, made in a fit state of mind, beyond suspicion and hence, no taint can be attached to it. Further, we do not see any procedural irregularities in recording Ex.P6- dying declaration of the deceased by the Magistrate.
Dr.SA,J & EVV, J 26 Crl.A.No.659 of 2013
28. Learned counsel for the appellant/A1 contended that the person who shifted the injured Meenakshi to the hospital was not examined by the prosecution. Admittedly, there is no much role played by the person who shifted the injured Meenakshi to the hospital, except giving information to PW.2 and calling 108 ambulance service to shift the injured to the hospital. Hence, his non-examination before the Court would not be, in any way, fatal to the prosecution case. Merely because he is not cited as a witness and examined before the Court, that by itself would not, in any event, vitiate the whole prosecution case.
29. Learned counsel for the appellant/A1 also contended that there is inconsistency in between Ex.P6-dying declaration of the deceased recorded by the Magistrate and Ex.P7 & Ex.P10-statements of the deceased recorded by PW.8-investigating officer. We are unable to accept the said contention. On perusal of Ex.P6-dying declaration of the deceased and Exs.P7 and P10-statements recorded by the SI of police, no inconsistencies are found. So, reliance can be placed safely over the testimony of PW.7-Magistrate and PW.8-Investigation officer and Exs.P6, P7 and P.10, to arrive at a conclusion. On the other hand, there is clear and consistent evidence of PW.1 with regard to occurrence Dr.SA,J & EVV, J 27 Crl.A.No.659 of 2013 of subject incident and involvement of the appellant/A1 in the commission of offence.
30. As seen from the entire evidence on record, it is the consistent version of PW.1 and PW.2 that when the deceased refused to enter into compromise with the appellant/A1 in relation to a Court case, the appellant/A1 poured kerosene on her and set her ablaze. Their version is supported by Ex.P6-dying declaration of the deceased and Ex.P7- complaint statement recorded by PW.8. There is no reason or any circumstance, either to the deceased or to PWs.1 and 2, to falsely implicate the appellant/A1 in a case of this nature, leaving the real culprit. The entire evidence on record is cogent, consistent and inspires confidence to act upon. There are no material omissions and contradictions. The evidence on record substantiates that the appellant/A1, with a premeditated mind to do away with the life of the deceased, poured kerosene on her and set her ablaze. The appellant/A1, knowingly and fully aware of the fact that his act is likely to cause death of the deceased, poured kerosene on the deceased and set her ablaze, with an intention to eliminate her, since she refused to enter into compromise in relation to a Court case. Hence, this Court is of the considered view that the subject offence would not, in any way, fall under any of the exceptions provided under Section 300 of IPC.
Dr.SA,J & EVV, J 28 Crl.A.No.659 of 2013 The deceased was mercilessly burnt to death by the appellant/A1. All the requirements of Section 302 of IPC have been proved beyond all reasonable doubt against the appellant/A1, so also the requirements of Section 506 of IPC.
31. The circumstances from which an inference of guilt is sought to be drawn against the appellant/A1 are cogently and firmly established by the prosecution. The Court below had meticulously dealt with the entire evidence and is justified in convicting the appellant/A1 of the offences under Sections 302 and 506 of IPC. The Court below is also justified in sentencing the appellant/A1 as stated supra. There is nothing to take a different view. None of the contentions raised on behalf of the appellant/A1 merit consideration. The appeal is devoid of merit and is liable to be dismissed.
32. In the result, the Criminal Appeal is dismissed, confirming the conviction and sentence recorded against the appellant/A1 of the offences under Sections 302 and 506 of IPC vide judgment, dated 06.03.2013, passed in S.C.No.202 of 2012 by the learned Sessions Judge, Mahabubnagar. This Court was pleased to grant bail to the appellant/A1 vide order, dated 23.07.2018, passed in I.A.No.2 of 2018 in this appeal. Since this Criminal Appeal is dismissed confirming the conviction and sentence recorded against the appellant/A1 by the Court Dr.SA,J & EVV, J 29 Crl.A.No.659 of 2013 below, the appellant/A1 is directed to surrender before the Superintendent, Central Prison, Cherlapally, forthwith, to serve the remaining period of sentence. If the appellant/A1 fails to surrender as ordered, the Court below is directed to issue Non-bailable warrant against him and take all consequential measures.
Miscellaneous Petitions, if any, pending in this Criminal Appeal, shall stand closed.
____________________ Dr. SHAMEEM AKTHER, J _______________ E.V.VENUGOPAL, J Dated:- 30.08.2022 Bvv