Andhra HC (Pre-Telangana)
Surisetty Pitchaiah vs State Of A.P. on 23 December, 1997
Equivalent citations: 1999(1)ALD689, 1999(1)ALD(CRI)202, 1998(2)ALT(CRI)504
ORDER N.Y. Hanumanthappa, J.
1. Sole accused in SC No.467 of 1989 on the file of the I Addl. Sessions Judge, Cuddapah, has preferred this appeal against the judgment and order convicting and sentencing him to life imprisonment for the offence punishable under Section 302 IPC.
2. The substance of the charge against the accused is that on 25-3-1989 at about 10.00 a.m., he poured kerosene on Surisetti Jayamma and set her on fire and as a result she died at the Government Headquarters Hospital, Cuddapah, on the same day at 2.30 p.m.
3. The prosecution case briefly stated is that the accused is the husband of the deceased (Jayamma). The accused married the deceased 17 years back and she was living with the accused and that they did not have children. The accused for the past 3 or 4 years developed illicit intimacy with his neighbour Ramanamma, wife of Chinna Gurrappa of Mydukur and on that account, the accused was ill-treating the deceased. About two months back, prior to the occurrence, the accused beat the deceased and drove her away. PW1 (Penujuvvi Ramaiah) the father of the deceased sent her back to the accused along with his son PW2 (P. Venkata Subbaiah) and PW3 (K.Narasimha Reddy). On 25-3-1989 at about 10.00 a.m. the deceased and the accused were in the house, and the accused beat the deceased with hands and legs and snatched away her gold bangles, rings and then poured kerosene on her and set fire saying 'Chave Lanja'. The deceased ran into the street with flames. PW6 (M. Subbamma), fruit vendor caught hold of the deceased as she was falling and took her in a rickshaw to private nursing home of PW10 (Dr. C.N. Rangasimha), Medical Practitioner. On intimation from the said nursing home, PW9 (K.V. Subbaiah), Head Constable, went to the hospital and the deceased gave a complaint to him under Ex.P4 in the presence of PW10 and he certified that the deceased was conscious at the time of giving the complaint.
4. PW9 registered the complaint as Cr.No.59 of 1989 under Sections 326 and 307 IPC. Later, the deceased was shifted to the Government Headquarters Hospital, Cuddapah and admitted there at 2.05 p.m. and on the same day, she expired at about 2.30 p.m. On receipt of the death information, the police altered the Sections into 302 IPC in the FIR and the police held the inquest over the dead body in the Headquarters Hospital, Cuddapah on 26-3-1989. The panchayatdars to the inquest opined that the death was the result of hum injuries caused by the accused. The case was referred false by the investigating officer. However, the complainant i.e., PW1 filed a complaint and the same was registered by the II Addl. Munsif Magistrate of Proddatur as CC No.612 of 1989 and committed the same to the Sessions Court, Cuddapah, and the same has been registered as SC No.467 of 1989.
5. The Sessions Court framed a charge under Section 302 IPC and the accused pleaded not guilty. Prosecution examined PWs.1 to 11 and marked Exs.Pl to P8. PWs.l to 4 testified to the fact of earlier ill-treatment of the deceased by the accused. PW3 and PW4 are teacher and paternal uncle of the deceased respectively, PW5 (M. La/a Saheb) testified to the fact that he along with another took the deceased in a rickshaw to the hospital. PW7 (Syed Jaffar) who is RMP Doctor, testified to the fact that the deceased came out of the house with flames and PW6 took her to the private hospital. PWs.5 and 8 were treated hoslile by the Court at the request of the prosecution.
6. PW9, Head Constable and in-charge S.H.O of Mydukur Police Station went on 25-3-1989 at about 10.00 a.m. to the nursing home on information by PW10 and found the deceased with burn injuries in conscious stage and he recorded her dying declaration under Ex.P4 at about 10.15 a.m. which is attested by PW10 and on the basis of the same, he registered a case in Cr.No.59 of 1989 and further recorded the statement of the deceased under Section 161 Cr.PC under Ex.P6 in the said nursing home and on the same day on 25-3-1989 at about 11.25 a.m. on the advice of doctor, he sent the injured Jayanuna to the Government Hospital, Cuddapah, where she succumbed to the injuries. On the same day, he visited the scene of offence and examined the witnesses and drawn a rough sketch. PW10 testified that he gave first aid to the injured Jayanuna and informed the police about the condition of the deceased and he certified Ex.P4. PW11 (Dr. T. Subbarao), Medical Officer, who conducted post-mortem examination opined that the deceased would appear to have died of shock due to burns and issued Ex.P8 Postmortem Certificate.
7. On behalf of the defence, DWs.1 to 3 were examined. DW1 is a lorry owner who testified that he was sitting in the workshop of PW2 with one Subbareddy at 8.00 a.m. and then at about 8.30 a.m. the accused came there and at about 10.00 a.m. one Venkatasubbaiah came running and informed to the accused that his wife lit fire to herself and that the accused ran weeping to his house and they also followed the accused, and on the way they saw the deceased injured been taken in a rickshaw to the hospital and the accused went towards the hospital.
8. DW2 testified that the accused came to his shop at about 8.30 a.m. and was talking with DW1 and one Subbarayudu till about 10.00 a.m. and then one Venkatasiibbaiah, a Radio Mechanic came running and informed the accused that his wife lit herself with fire. The accused ran weeping towards his house and saw the deceased on being taken by a rickshaw to the hospital and the accused also followed the deceased to the hospital.
9. DW3 testified that he investigated the case in Cr.No.59 of 1989 of Mydukur Police Station, registered on the basis of the statement of the deceased and after thorough investigation, he referred the case as false and submitted final report to the Court after serving notice to PW1 marked as Ex.D1. He testified that the house of the deceased is in front of the Police Station and his investigation and inspection of the scene of offence reveal that there is no scope for anybody to escape from the back door of the house of the accused and he examined the neighbours of the accused and further the statements of DW1 and 2 reveal that at the alleged time of occurrence, the accused was in the shop of DW2. He testified that he obtained approval from the Supdt. of Police to refer the case as false. The S.P. granted permission to refer the case after perusing the case diary and the detailed report. He also testified that the thumb impression obtained on the kerosene bottle at the time of investigation did not give any clue with regard to the identity of thumb impression.
10. After closure of evidence, the trial Court went through the entire evidence i.e., both oral and documentary and found that the death of the deceased was not suicidal one, but it was a murder and the person caused her death was the accused herein, who is the deceased's husband and found that there is sufficient evidence to reach upon the conclusion as to the involvement of the accused to the alleged incident. Thus, the trial Court, convicted and sentenced the accused as stated earlier. Aggrieved by the same, this appeal.
11. Mr. C. Padmanbha Reddy, learned senior Counsel appearing for the accused, submitted that the judgment and order convicting and sentencing the accused is bad and liable to be set aside for the reasons that there is no clinching and acceptable evidence to incriminate the appellant with the crime, the learned Judge erred in convicting the appellant for the offence punishable under Section 302 IPC and both the dying declarations are not consistent with each other on material particulars.
12. Ms. C. Susheela Devi, learned Public Prosecutor, while refuting the submissions made by the learned senior Counsel for the appellant, submitted that involvement of the appellant-accused in the crime consistently noticed in both the dying declarations and the learned Judge has not committed any error in placing reliance on dying declarations in convicting the accused-appellant, and consequently the appeal is liable to be dismissed.
13. To ascertain how far the rival contentions arc correct, we once again went through the entire judgment and evidence on record. The case is based mostly on circumstantial evidence. The Court below placed reliance on the statements of PW1 to PW4, who spoke about the motive. The Court below also attached importance to the statement alleged to have been made by the deceased through the police constable, PW9 marked at Ex.P4. The Court below had failed to notice that when there are two types of dying declarations i.e., one to the Doctor and another to the Head Constable and which are at variance, whether to be accepted or benefit of doubt be given. It is stated as if the MRO was not available in the village to record the dying declaration. If so, no answer from the prosecution as to why MRO was not requested to record the dying declaration of the deceased. It is stated that the accused, after pouring kerosene and after setting his wife on fire, went out from the back door of the house. But, in reality, there exists no back door to the house. All these contradictions, inconsistencies suggest innocence of the accused to alleged offence. The evidence of PW10, the doctor further strengthens that the death of the deceased was one in the nature of suicide.
14. Where the evidence is based on circumstances i.e., circumstantial evidence, the evidence shall be free from all doubts. It shall be clear, clinching and acceptable. It must narrate all the links relating to the commission of offence and in turn, which may formulate a complete chain of committing of offence. In the case on hand, the important links are not only missing, but the links told by the prosecution compel us to draw the conclusion that the said links are doubtful in nature. The question will be whether the conviction will be ordered on the basis of evidence of doubtful or suspicious in nature. Time and again, it is said that the duty of the Court is to be more careful and conscious when it is considering an accusation surrounded by circumstantial evidence.
15. We are of the view that the learned Judge, erred in accepting the evidence as against the accused inspite of so many inconsistencies and contradictions which go to the root of the truthfulness of the said dying declarations.
16. Where the dying declarations are not consistent, the Supreme Court held that even if the declarations are consistent in respect of particular accused the accused is entitled to be acquitted. In Thurukanni Pompiah and another v. Stale of Mysore, , it is observed that :
"A dying declaration is relevant and material evidence in the prosecution of the assailants and a truthful and reliable dying declaration may form the sole basis of conviction, even though it is not corroborated. But the Court must be satisfied that the declaration is truthful. The reliability of the declaration should be subjected to a close scrutiny, considering that it was made in the absence of the accused who had no opportunity to test its veracity by cross-examination. If the Court finds that the declaration is not wholly reliable and a material and integral portion of the deceased's version of the entire occurrence is untrue, the Court, may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration."
17. In State of Gujarat v. Khumansingh Karsan Singh and others, , it is observed that:
"..... There is no doubt that there is inconsistency between the first dying declaration and the subsequent two dying declarations which betrays the possibility of her being amenable to tutoring. It is quite clear that the relationship was strained due to the bad blood between her and her mother-in-law. The possibility of false involvement could not be ruled out and the High Court, therefore, thought that in the absence of corroborative evidence, it is unsafe to rely mainly on the inconsistent dying declarations....."
18. in Chakiri Saidulu and others v. State of A.P., 1994 APLJ (Crl.) 516 (HC), it is observed that:
"..... The consistency must be with regard to the assailants and the manner in which the incident had happened. It is impossible to hold that in a case where there are more than one dying declaration, the Court has to compare all the dying declarations in order to assess the extent of incrimination."
19. In view of the above factual and legal position and in the light of the decisions laid down by the Supreme Court, the conclusion which will be compelled to draw is that the case of the prosecution is full of doubts and it failed to establish it's case beyond reasonable doubt. On the other hand, we are also of the opinion that the evidence available suggests (1) the involvement of the accused and (2) the innocence of the accused. Under such circumstances, the appropriate course open to the Court is to accept the way it suggests the innocence of the accused and order for his acquittal. Hence, the trial Court erred in ordering conviction on the basis of a shaken and unacceptable evidence.
20. Accordingly, the conviction and sentence passed by the I Addl. Sessions Judge in SC 467 of 1989 for the offence punishable under Section 302 IPC and to suffer rigorous imprisonment for life are set aside.
21. This appeal is allowed and the accused is ordered to be set at liberty forthwith, if he is not required in any other case.