Andhra HC (Pre-Telangana)
Shaik Shafi Ahmed vs The State Of A.P., Rep. By Public ... on 5 March, 2014
Bench: L.Narasimha Reddy, S. Ravi Kumar
HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRL.A.NO.1614 OF 2009 05-03-2014 SHAIK SHAFI AHMED ....APPELLANT/ACCUSED THE STATE OF A.P., Rep. by Public Prosecutor, High cOURT Of A.P., Hyderabad...RESPONDENT/COMPLAINANT/ Counsel for the Petitioner:Sri M.A.Khadeer Counsel for the Respondent:Public Prosecutor <Gist: >Head Note: ?cIATATIONS: CRIMINAL APPEAL No. 1614 of 2009 JUDGMENT:
(per the Hon'ble Sri Justice L.Narasimha Reddy) A1 to A4 were tried by the Court of the V Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad in S.C.No.38 of 2009 for causing the death of Afsari Begum, wife of A1. After conducting full-fledged trial, the learned Trial Judge acquitted A2 to A4 through its judgment, dated 21.10.2009. A1 was convicted for the offence punishable under Section 302 I.P.C., and was imposed the punishment of imprisonment for life. Fine of Rs.500/-, in default, to undergo simple imprisonment for one month, was also imposed. A1 was acquitted of the charges referable to Section 498-A I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act. This appeal is filed by A1, feeling aggrieved by the conviction and sentence, handed out to him.
The case presented by the prosecution was that the deceased, who is the second daughter of P.W.1, was married to A1 on 24.11.2002 and two children were born out of the wedlock. It was alleged that the accused was harassing the deceased in various forms, particularly in the context of transfer of a plot of 200 square yards in his name. A1 is also said to have got issued a notice to the father of the deceased narrating the strained relations between him and the deceased and when P.W.1 and her husband went to the Office of the Advocate, who issued notice, A1 and the deceased came there and stated that the problems have since been resolved.
P.W.1, the mother of the deceased, is said to have received the intimation in the night of 20.10.2008 to the effect that her daughter was admitted in Owasi Hospital with serious burn injuries and she went there and saw A1, and in spite of her questioning, A1 remained silent about the reason for the injuries. After the deceased was shifted to another ward, P.W.1 is said to have interacted with her and that the deceased told her that all the accused poured kerosene upon her, and set her on fire.
After the deceased was admitted into the hospital with serious burn injuries, Crime No.222 of 2008 was registered by Santosh Nagar Police Station. The Inspector of Police, P.W.14, sent a requisition to the Jurisdictional Magistrate. Since he was doubtful about the survival of the deceased till the arrival of the Magistrate, P.W.14 recorded a dying-declaration, marked as Ex.P12 at 11.00 p.m. Half an hour thereafter, the Jurisdictional Magistrate, P.W.13, came to the Hospital and recorded the statement, Ex.P10. Five days thereafter, the deceased died. The provision of law in the FIR was altered. On the basis of the dying-declarations and other facts noticed during the investigation, P.W.14 filed a charge sheet. The trial Court framed as many as five charges against all the accused.
The prosecution examined P.Ws.1 to 14 and marked Exs.P1 to P16. M.Os.1 to 3 were also taken on record. The nature of disposal given by the trial Court has already been indicated in the preceding paragraphs.
Smt.Gayathri Reddy, learned counsel for A1 submits that though there are two dying-declarations on record, both are at variance with each other and having acquitted A2 to A4 on noticing the serious discrepancy, the trial Court thought it fit to convict A1. She contends that the result of the discrepancy between Exs.P10 and P12 would be the same vis--vis all the accused, since there are no differentiating factors. Learned counsel further submits that P.W.2, the juvenile witness, who is said to have witnessed the incident, has categorically admitted that he has been tutored not only by P.W.1 and her family members, but also by the Additional Public Prosecutor. Learned counsel further submits that the reason mentioned in Ex.P10 for A1, to have poured kerosene and to set her on fire is, purchase of a book without his knowledge, whereas a totally different reason was cited in Ex.P12. She contends that P.W.1 was not at all consistent as to what she heard from the deceased, soon after she reached the hospital.
Learned Public Prosecutor, on the other hand, submits that the two dying- declarations are consistent as to the cause of the death and the minor discrepancies about the acts that preceded the incident are of no consequence. She contends that the trial Court has weighed the oral and documentary evidence from the correct perspective and has arrived at just and proper conclusion. It is pleaded that the objective approach on the part of the trial Court is evident from the fact that A2 to A3 were acquitted on finding that their names did not figure in Ex.P10 and there does not exist any basis for extending the same benefit to A1, since his name was specifically mentioned in it. The deceased received serious burn injuries in the night of 20.10.2008. It was alleged that A1 sent his two minor sons to Namaz, and when himself, and the deceased alone were in the house, he picked up quarrel in the context of transferring the plot in his favour. It was further alleged that when the deceased was not agreeable for that, he poured kerosene upon her and set her on fire. If this allegation is proved, the conviction ordered against A1, can certainly be upheld.
Though the prosecution sought to project PW.2, the minor son of A1 and deceased, it is too difficult to accent his evidence. The reason is that even by the date of examination in the Court, he was just boy of five years of age, and he stated in the cross examination that, the police asked him to tell in the Court what they told him. In addition to that, the Additional Public Prosecutor is also said to have informed him as to what he must depose in the Court. Those two admissions are sufficient to discard his evidence. The boy was so innocent, that he sated that the deceased was coming out of the house with flames, A1 was present there, but he did not give him chocolates. It is difficult to conclude that a boy of that understanding would be in a position to properly analyse the state of affairs around him.
Even if the evidence of PW2 is omitted from consideration, there are two dying declarations recorded from the deceased, namely, Exs.P10 and P12. The concerned police official gave a requisition-Ex.P11, to the jurisdictional Magistrate, to record dying declaration. The learned counsel for the A1 sought to rely upon a sentence, occurring in Ex.P11, which reads:
" .....one patient by name Smt Afsari, W/o Mohd Shafi Ahmed, age 28 years, Occ. House hold, r/o H.No.17-1-250/5/A, M.B.Huts, Santhoshnagar, Hyderabad poured kerosene on herself and set fire at about 7.45p.m. today i.e., on 20-10-2008 at her residence due to domestic problems....."
This, no doubt would give indication, that the deceased poured kerosene on herself due to the domestic problems. However, the same cannot be treated as conclusive. At the most, it may be the understanding of the person, who gave the requisition.
By the time, the PW.13 reached the hospital, PW.14-the Inspector of Police, recorded the statement of the deceased, and it is marked as Ex.P12. The relevant portion of Ex.P12 reads as under:
"....I am residing at Santhosh nagar MB Hat along with my husband Shaik Shafi Ahmed and 2 male children Faraez & Farhana. I married Sk.Shafi Ahmed on 24.11.2002. Since my marriage my husband Sk.Shafi Ahmed my mother in law, sister in law Mehraej Begum used to harass me for each and every issue. Since 3 days he is harassing and beating me. Yesterday i.e., on 19.10.2008 evening on the guise of taking me to hospital he taken me to an advocate office and insisted me to sign on some papers. Today i.e., on 20.10.2008 evening at about 7.45p.m. my husband came picked up quarrel for my father's plot and when I denied he poured kerosene on my body and set fire to me with match stick. I cried but no one came to my rescue. I request you to take action on my husband and his mother and sister Mehraej......"
Within half an hour, PW.13 reached and recorded Ex.P10, another Dying Declaration. The translated version of that reads as under:
"...On 20.10.2008, myself living at home, in the night hours about 8.00p.m., at the time of cooking on gas stove. In the meantime my husband came and put the kerosene on me, and fire a match stick on the kerosene, due to this the flame of fire touched to my body and my body burnt out, I bought a book, then my husband said why you bought the book without my permission? That the BOOK IS BEE BEE SAGHAT BOOK (Holy Story of Bi Bi Fatima) to clear all the troubles, if you read the story and give Fateha to her name) However, I got a plot in favour of me i.e., admeasuring 200 sq yds after my marriage, my husband always abused to me in the vulgar and filthy language, she is giving answer slowly for sometime, thereafter she is giving answer, due to the unbearable pains. Hence stopped to record the DD...."
From a perusal of the two dying declarations extracted above, it is evident that there are serious variations between them. In Ex.P12, the deceased named all the four accused as the persons, as those who harassed her and alleged that A1 poured kerosene upon her. The reason mentioned therein, is that A1 quarrelled with her about a plot. She did not speak about the presence of her son-PW.2, who is said to have seen her coming out of the house with flames. In contrast, she did not name A2 to A4 in Ex.P10. The reason attributed to the A1 for setting her on fire, is that she purchased a book without his permission. In Ex.P-12 itself, it is mentioned that the condition of the deceased was deteriorating to such an extent, that she stopped giving any further answers. It was elicited from PW.13, that he did not follow prescribed procedure in the context of recording the Dying Declaration, Ex.P10 is not clear, as to whether the deceased was giving answers in Urdu or Telugu. PW.13 recorded the statement in Telugu, though certain English sentences were incorporated. The requirement in law that the contents of the dying declaration, must be explained to the person from whom, it is recorded, and signature of the person must be taken as a token of approval, are not complied with; obviously because, the deceased was not responding to any quarries, after sometime.
The dying declaration certainly has its own value particularly, when there is no eye witness to an occurrence. However, if there are more declarations than one, and they are at variance with each other, the Court is required to be cautious in accepting them in entirety. It has certainly to look into the corroboration from other evidence.
PW.1 is said to have interacted with the deceased in the hospital. It was A1, who admitted the deceased in the hospital. If he was the person, who set the deceased on fire after pouring kerosene, one does not expect him to rush her to the hospital.
In her chief examination, PW.1 stated as under :
"....When I made enquiries with A1 as to how she received these burn injuries, A1 did not tell anything. By the time, I went to the hospital, Police recorded the statement of the deceased. The police examined me and recorded my statement. The deceased was alived for 5 days, in the same hospital...."
The deceased was alive for about five days, and during that period, PW.1 is said to have interacted with her. However, this witness is not clear as to what exactly was informed to her by the deceased. She stated that :
"....I asked the deceased as to how she received burn injuries. She informed me that while she was cooking food, somebody came from her back side, poured kerosene on her and set fire on her. The witness again sated that the deceased informed her that A1 might have poured kerosene and set fire to her. Again the witness sated that the deceased informed me that all the accused poured kerosene and set fire to her....."
If in the chief examination itself, PW.1, the prime witness presented as many as three different versions about what is said to have been revealed to her by the deceased, one just cannot have a clear picture on the basis of the evidence of such a witness. If the conflicting versions flowing from Ex.P10 and Ex.P12, are viewed together with the uncertain and contradictory version of PW.1, the inescapable conclusion is that, the prosecution failed to prove that it was the accused, that poured kerosene on the deceased, and set her on fire.
Extensive suggestions were made to PW.1, and other witnesses, to the effect that the deceased had a grievance against her parents on account of the fact that:
(a) the marriage of her younger sister was performed earlier in point of time, without performing her marriage;
(b) all the three daughters of her parents were conferred benefits of one kind, or the other, but she was neglected;
Though the suggestions so made cannot be said to have been proved, they cannot be ignored altogether.
Hence, we are of the view that the reasons that prompted the trial Court to acquit A2 to A4, would certainly weigh vis--vis A1 also, and the conflicting versions presented by PW.1, even in the chief examination would weaken the case of the prosecution against the, left over accused.
In the result, the Criminal Appeal is allowed. The conviction and sentence ordered in S.C.No.38 of 2009 on the file of the V Additional Metropolitan Sessions judge, Mahila Court, Hyderabad, dated 21.10.2009, against the appellant-A1, are set aside. The appellant-A1 shall be set at liberty forthwith, unless his detention is needed in any other case. The fine amount, if any, paid by the appellant-A1 shall be refunded to him. The miscellaneous petition filed in this appeal shall also stand closed. __________________________ L.NARASIMHA REDDY, J _____________________ S.RAVI KUMAR,J Date: 05.03.2014