Andhra Pradesh High Court - Amravati
Sheik Abdul Azeem vs The State Of A.P., on 18 July, 2019
Author: M. Satyanarayana Murthy
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
CRIMINAL APPEAL NO.226 OF 2013
JUDGMENT:(Per The Hon'ble Sri Justice M. Satyanarayana Murthy) It is a case where the appellant/accused allegedly murdered one Pujala Naga Subbamma in the wee hours of 10.01.2011 for refusing to satisfy his lust, by pouring kerosene and setting fire to her body in her residential house. After trial, the appellant/accused was found guilty for the offence punishable under Section 302 I.P.C, convicted and sentenced to suffer imprisonment for life and to pay fine of Rs.1,000/- in default to suffer rigorous imprisonment for a period of three months. Aggrieved by the conviction and sentence in Sessions Case No.4 of 2012 passed by the V Additional District and Sessions Judge, Tirupati, the present criminal appeal is filed.
The factual matrix of the case as culled out from the record is as follows:
The deceased - Pujala Naga Subbamma was residing with her two daughters Navitha and Nikitha at D.No.3-413, Yerramreddygutta, Piler Town. Her husband Pujala Mallikarjuna was working in Kuwait to earn money and eek out livelihood, as they were not able to earn sufficiently by their caste profession weaving. Pujala Naga Subbamma got acquaintance with the accused - Shaik Abdul Azeez, resident of Thimmapuram Cross, K.V. Palli Mandal, one year ago through her sister Prasuna. She used to talk to him frequently and he used to visit the house of Pujala Naga Subbamma and they developed friendship.
2 HACJ & MSMJ CrlA_226_2013 Taking advantage of the friendship, the appellant/accused demanded Pujala Naga Subbamma to satisfy his sexual desire, but she refused blatantly. On 04.12.2010, husband of Pujala Naga Subbamma returned to his house from Kuwait and stayed for few days. Again he went to Kuwait on 06.01.2011. On coming to know about the departure of Mallikarjuna to Kuwait from Yerramreddy Gutta, the appellant/accused who was waiting for an opportunity went to the house of Pujala Naga Subbamma in the intervening night of 09/10.01.2011 by concealing himself outside the steps. On 10.01.2011 in the early hours i.e. at about 3-45 a.m, when Pujala Naga Subbamma came out of her house for attending nature calls, the accused who was hiding beside the steps, trespassed into her house and soon after arrival of Pujala Naga Subbamma into the house, the accused bolted the door and demanded her to fulfill his sexual desire, she had refused and picked up quarrel. When Pujala Naga Subbamma refused to fulfill his sexual desire, he became frustrated and threatened to kill her. The accused became infuriated and picked up kerosene can and poured kerosene on her and set her on fire with the intention to kill her, knowing that those injuries would cause her death. As a result, Pujala Naga Subbamma sustained thermal burn injuries. Due to fear, the deceased tried to catch hold of the accused, but, the accused pushed her away and absconded from there. In the same incident, the accused received burn injuries to his hands and other parts of the body. Due to burn injuries, Pujala Naga Subbamma came out from house with flames on her body and raised hue and cry, the neighbours woke up, put off the flames by pouring water and they had shifted her to Community 3 HACJ & MSMJ CrlA_226_2013 Health Centre, Piler in '108' ambulance. On receipt of hospital intimation, Sri G. Hari, Judicial Magistrate of First Class (P.W.13), Piler recorded the statement of the injured Pujala Naga Subbamma and thereafter, she was shifted to SVRRGG Hospital, Tirupati for better treatment.
On receipt of hospital intimation, Sri T. Narasimhulu Sub Inspector of Police, Piler who was examined as P.W.15 went to Community Health Centre, Piler, recorded the statement of the victim and registered First Information Report in Crime No.7 of 2011 for the offences punishable under Sections 448 & 307 I.P.C, issued F.I.R, which is marked as Ex.P-19.
During course of investigation, Sri T. Narasimhulu Sub Inspector of Police, Piler (P.W.15) visited the scene of offence and prepared an observation report which is marked as Ex.P-9 and seized M.O.1 - Broken cell phone, M.O.2 - Burnt pieces of saree, M.O.3 - White colour plastic bottle, M.O.4 - Pair of chappals, M.O.5 - Sim Card in the presence of mediators and prepared a rough sketch of scene of offence. Further, the Sub-Inspector of Police took up investigation on 10.01.2011, examined the injured who is undergoing treatment in the hospital and recorded her statement. He also recorded statements of P.Ws.2,3,4 & 5 and arrested the accused. The accused was interrogated in the presence of mediators M. Srinivasulu and B. Siddaiah (P.W-10). During interrogation, the accused made a confession leading to discovery. Accordingly, the same was reduced into writing which is marked as Ex.P-10. On being lead by the accused in pursuance of Ex.P-10 i.e admissible portion of confession statement, the house of P.W.9 -P. Syfulla in the presence of mediators 4 HACJ & MSMJ CrlA_226_2013 was visited and M.Os.6 & 7 were seized under the cover of mediators report, later remanded the accused to judicial custody on 10.01.2011.
Incidentally, the accused was also examined by P.W.12 - Dr. P. Roopanand and found thermal burn wounds, issued Ex.P-13 - Wound certificate of the accused. While undergoing treatment, Pujala Naga Subbamma died in SVRRGG Hospital, Tirupati and the same was intimated to Station House Officer, Piler and on the basis of the death intimation, marked as Ex.P-12, issued altered F.I.R for the offence punishable under Section 302 I.P.C and held inquest over the dead body in the presence of mediators, Ex.P-12 is the inquest report. Observation report was prepared, marked as Ex.P-9. Later, the Sub Inspector of Police handed over investigation to Sri B. Parthasarathy, Inspector of Police (P.W.16), who in-turn examined P.Ws. 5 to 9 and recorded their statements and sent the dead boy for autopsy. Dr. K. Bhaskar, Assistant Professor, Department of Forensic Medicine, S.V. Medical College, Tirupati (P.W.14) held autopsy over the dead body and issued post mortem report, marked as Ex.P-16, opining that the cause of death was due to thermal burns. Thus, the accused caused death by pouring kerosene and set fire to the body of Pujala Naga Subbamma, knowing that those injuries were sufficient to cause death in ordinary course of events.
Basing on the evidence collected during investigation, P.W.16 filed charge sheet before the Judicial Magistrate of First class for the offence punishable under Section 302 I.P.C, who in turn concluded that the offence is exclusively triable by Court of Sessions, by following the procedure under Section 207 Cr.P.C, committed the case 5 HACJ & MSMJ CrlA_226_2013 to the Sessions Division, Chittoor under Section 209 Cr.P.C, who in- turn registered the same as Sessions Case No.4 of 2012 made over to V Additional District Judge to try and dispose of the sessions case in accordance with law.
After securing the presence of the accused and upon hearing argument of learned Public Prosecutor and defence counsel, the Trial Court framed sole charge against the accused for the offence punishable under Section 302 I.P.C, read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried.
During trial, on behalf of the prosecution, P.Ws. 1 to 16 were examined, marked Exs.P-1 to P-23 and seized M.Os.1 to 7. After closure of the evidence of prosecution, the accused was examined under Section 313 Cr.P.C, explaining the incriminating material that appeared against him, in Telugu, he denied the same, reported no defence.
Upon hearing argument of learned Public Prosecutor and defence counsel, the learned V Additional District & Sessions Judge, Tirupati found the accused guilty for the offence punishable under Section 302 I.P.C beyond reasonable doubt, based on the dying declaration (Ex.P-15), evidence of Sri G. Hari, Judicial Magistrate of First Class, Piler (P.W.13), evidence of officials and mediators, and by accepting the circumstantial evidence produced before the Court, found the accused guilty, convicted and sentenced him to undergo life imprisonment for the offence punishable under Section 302 I.P.C and to pay fine of Rs.1,000/- in default, to suffer rigorous imprisonment for a period of three months.
6 HACJ & MSMJ CrlA_226_2013 Aggrieved by the conviction and sentence in Sessions Case No.4 of 2012 passed by the V Additional District and Sessions Judge, Tirupati, the present criminal appeal is filed under Section 397(2) Cr.P.C.
The main grounds urged in the grounds of appeal are that, the Trial Court failed to appreciate the contention of the defence counsel with regard to compliance of Rule 33 of Criminal Rules of Practice by Sri G. Hari, Judicial Magistrate of First Class, Piler (P.W.13) to record Ex.P-15 - Dying declaration, as he failed to take precautionary steps for recording dying declaration of the deceased. But, the Trial Court ignored this contention and did not consider this contention in proper perspective. Though a ground is raised about non-compliance of Rule 33 of Criminal Rules of Practice, during argument no such contention was raised before the Trial Court and this Court to answer. It is further contended that the statement of the deceased Pujala Naga Subbamma recorded by the Sub-Inspector of Police, marked as Exs.18 and 20 and the statement recorded by P.W.13, marked as Ex.P-15 are not consistent and contradictory to one another. Yet, the percentage of burns sustained buy Pujala Naga Subbamma are sufficient to conclude that she was not in mentally fit condition to give statement and in the absence of any independent corroborative evidence, recording a conviction against the accused for the serious offence is a grave illegality committed by the Trial Court. It is further contended that the appreciation of evidence by the Trial Court with regard to dying declaration under Section 32(2) of Indian Evidence Act is contrary to the settled canons of law. Believing the case of the prosecution based on Post Mortem Report (Ex.P-16) to rope the 7 HACJ & MSMJ CrlA_226_2013 appellant/accused with the offence is another serious irregularity, since the prosecution has to establish the guilt of the accused beyond reasonable doubt and therefore, based on the statement of Sri G. Hari, Judicial Magistrate of First Class, Piler (P.W.13), the accused cannot be roped with the offence punishable under Section 302 I.P.C. Further, evidence of Dr. P. Roopanand (P.W.12) is another important piece of evidence to be considered to find the accused guilty. But, the Trial Court did not consider the evidence and the grounds urged before it in proper perspective and committed a serious irregularity and convicted the accused for the offence punishable under Section 302 I.P.C and requested to set-aside the same. Learned Public Prosecutor supported the calendar and judgment, convicted and sentence passed thereunder.
In view of the contentions urged before this Court, the points that arise for consideration are as follows:
1. Whether conviction can be recorded on the sole basis of dying declarations. If not, whether the inconsistency between multiple dying declarations is a ground to acquit the accused under Section 302 I.P.C?
2. Whether the accused explained the injuries found on his body vide Ex.P-13 (Wound certificate of the accused). If not, whether the accused can be connected with the offence punishable under Section 302 I.P.C for causing death of Pujala Naga Subbamma, on account of sustaining burn injuries to his hands?
Before determining the above points, it is appropriate to advert to the scope of Section 374 Cr.P.C.
8 HACJ & MSMJ CrlA_226_2013 Section 374 Cr.P.C conferred a substantive right of appeal on the accused who is convicted by the Trial Court and this Court while exercising power under Section 374(2) Cr.P.C is bound to re-appraise entire evidence to come to an independent conclusion, uninfluenced by the findings recorded by the Court below and decide the legality of conviction and sentence passed by the Sessions Court. Therefore, it is the duty of this Court to re-appraise entire evidence recorded by the Court below after giving an opportunity to both the parties, i.e accused and the respondent, unless the Court finds manifest perversity in the calendar and judgment or such findings were recorded without evidence, normally, this Court cannot interfere with such fact findings in appeal, while exercising jurisdiction under Section 374(2) Cr.P.C. It is the sacrosanct duty of the appellate court, while sitting in appeal against the judgment of the trial Judge, to be satisfied that the guilt of the accused has been established beyond all reasonable doubt after proper re-assessment, re-appreciation and re- scrutiny of the material on record. Appreciation of evidence and proper re-assessment to arrive at the conclusion is imperative in a criminal appeal. That is the quality of exercise which is expected of the appellate court to be undertaken and when that is not done, the cause of justice is not sub-served, for neither an innocent person should be sent to prison without his fault nor a guilty person should be let off despite evidence on record to assure his guilt (vide Kamlesh Prabhudas Tanna & Anr v. State Of Gujarat1). Keeping the scope of Section 374(2) Cr.P.C we would like to re-appreciate entire evidence 1 (2013) 15 SCC 263 9 HACJ & MSMJ CrlA_226_2013 on record to come to an independent conclusion, uninfluenced by the findings recorded by the Court below.
As the prosecution relied on circumstantial evidence, it is appropriate to discuss about the scope of it. When the case is based on circumstantial evidence, burden of proof is always on the prosecution to prove all the circumstances from which conclusion of guilt is to be drawn must be fully established and the facts so established must be consistent with hypothesis of guilt of accused and any circumstance consistent with innocence of accused, he is entitled to benefit of doubt. (vide Kishore Chand v. State of Himachal Pradesh2) The Apex Court while discussing the scope of Section 3 of the Evidence Act, more particularly, circumstantial evidence held that, in a case of murder when the prosecution relying on circumstantial evidence, it is for the prosecution to prove all the incriminating facts and circumstances and the circumstances which are incompatible with innocence of the accused to draw inference of guilt and such evidence should be tested by touch-stone of law relating to circumstantial evidence laid down by Supreme Court (vide Syed Hakkim & another v. State3) Similarly, in G.Parshwanath v. State of Karnataka4, the Supreme Court is of the view, when the case of the prosecution is based on proof of circumstantial evidence on the basis of which conclusion of guilt is drawn must be fully established fully, individual chain of circumstances must be complete pointing out the guilt of 2 AIR 1990 S.C. page 2140 3 2009 Cr.L.J. page 1891 4 AIR 2010 S.C. page 2914 10 HACJ & MSMJ CrlA_226_2013 accused, all proved facts must lead to inference of guilt of the accused alone and court has to draw distinction between primary and basic facts while appreciating the circumstances and regard must be had to common course of natural events and human conduct and finally the facts established should be consistent only with hypothesis of guilt of accused and it does not mean that each and every hypothesis suggested by the accused must be excluded by proved facts. In Rukia Begum Vs. State of Karnata with Issaq Sait and another v. State of Karnataka with Nasreen v. State of Karnataka5; Jagroop Singh Vs. State of Punjab, Inspector of Police, Tamil Nadu Vs. Balaprasanna6 Shaik Khadar Basha v. State of Andhra Pradesh7, the same principle was reiterated.
The Supreme Court in Trimukh Maloti Kikran v. State of Maharashtra8, wherein the Supreme Court held as follows:
"In the case in hand there is no eye-witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence Keeping in mind the law laid down, we would like to decide the points.5
AIR 2011 SC page 1585 6 2009(1) ALD (Crl.) page 113 7 2009(1) ALD (Crl.) page 859 (AP) 8 (2006) 10 SCC 681
11 HACJ & MSMJ CrlA_226_2013 P O I N T NO.1:
The prosecution case is based on the statements of Pujala Naga Subbamma, who died later while undergoing treatment, recorded by Sri G. Hari, Judicial Magistrate of First Class (P.W.13), which is marked as Ex.P-15 and the statements recorded by T. Narasimhulu, Sub-Inspector of Police (P.W-15), marked as Exs.P-18 & P-20 and the circumstantial evidence i.e. the confession leading to discovery and recovery of M.O Nos. 6 & 7 in addition to seizure of M.O Nos. 1 to 5 at the scene of offence, since the direct witnesses (P.Ws. 1 to 9) did not support the prosecution case and turned hostile.
The Trial Court mostly relied on the statement of Pujala Naga Subbamma i.e. dying declaration recorded by the Judicial Magistrate of First Class, recorded conviction of the accused. But, the contention of the learned counsel for the appellant/accused before this Court is that, there are three dying declarations marked as Exs.15, 18 & 20 which are not consistent with one another and when there is improvement or embellishment in the dying declarations recorded by two different persons, neither of the dying declarations can be believed to record conviction of the accused, unless the statement of the deceased Pujala Naga Subbamma is corroborated by testimony of independent witness. Learned counsel for the appellant/accused also pointed out that there are improvements in the dying declarations. It is a settled principle of law that the burden of proof is on the prosecution to establish the guilt of the accused beyond reasonable doubt and the Court cannot take advantage of weakness in the defense set up by the accused before the Trial Court. That too, in the
12 HACJ & MSMJ CrlA_226_2013 dying declaration recorded by either police or Magistrate, the deceased - Pujala Naga Subbamma did not disclose about sustaining burn injuries by the accused in the same incident. In the absence of such disclosure about sustaining injuries by the appellant/accused in the same incident, finding burn injuries on the body of the appellant/accused is not sufficient to conclude that the accused perpetrated the murder of Pujala Naga Subbamma. In support of his contentions, he placed reliance on the judgments of the Supreme Court in State of Punjab v. Parveen Kumar9, State of Gujarat v. Jayrajbhai Punjabhai Varu10, Sunil Kundu v. State of Jharkhand11, Mangu Singh v. Dharmendra and another12, Toran Singh v. State of Madhya Pradesh13 and judgment of High Court of Judicature at Hyderabad in Hrijana Narasimha v. State of A.P., rep by its Public Prosecutor, High Court of Judicature at Hyderabad14 and on the basis of the principles laid down in the above judgments, learned counsel for the appellant/accused would contend that, when there are multiple dying declarations of an individual, recorded by different persons and if the Court finds that there is any amount of improvement in the declarations to implicate the accused, the Court cannot base its conviction on the multiple dying declarations recorded by different persons within a short span of time.
Turning to the facts of the present case, husband of the deceased - Pujala Naga Subbamma went to Kuwait at the time of incident to earn his livelihood, whereas, Pujala Naga Subbamma 9 (2006) 1 Supreme Court Cases (Cri) 146 10 (2016) 14 Supreme Court Cases 151 11 (2013) 4 Supreme Court Cases 422 12 (2015) 17 Supreme Court Cases 488 13 2002 Supreme Court Cases (Cri.) 1377 14 2018 (1) ALT (Crl.) 210 (DB)(A.P) 13 HACJ & MSMJ CrlA_226_2013 developed contact with the appellant/accused through her younger sister and used to talk to the accused over phone. The alleged development of contact with the accused itself is suffice to show that the appellant/accused is a known person to the deceased - Pujala Naga Subbamma.
To establish the guilt of the appellant/accused, though the prosecution examined as many as nine witnesses, the alleged direct witness who was present in the house i.e. daughter of the deceased - P.W.2 Navitha did not support the case of the prosecution, obviously for different reasons. Merely because the eye witness did not support the case of prosecution, the other material available on record cannot be thrown overhead to found the accused not guilty for such offence. As the Trial Court based its conviction on dying declaration recorded by Sri G. Hari, Judicial Magistrate of First Class, Piler (P.W.13), and the statements recorded by the Sub-Inspector of Police P.W-15, it is necessary to decide the legality of the conviction and sentence passed by the Trial Court, re-appreciating the evidence available on record.
As per the evidence of P.W.13, he received hospital intimation from the duty doctor, Government Hospital, Piler marked as Ex.P-14 at abut 5:30 AM on 10.01.2011. Immediately he proceeded to Government Hospital, Piler and with the help of duty doctor, he identified injured Pujala Naga Subbamma who was conscious. He put certain questions to her to know the fit state of mind and thereafter, the duty doctor certified her state of mind and witness P.W.13 started recording the statement of Pujala Naga Subbamma by then. According to the statement of Pujala Naga Subbamma, on 10.01.2011 at 2.00 A.M when she came out of the house to answer nature calls, 14 HACJ & MSMJ CrlA_226_2013 by that time, one Azeez entered into her house and by seeing him, she questioned him as to why he entered into her house, for that, he answered that he has desire to have sex with her and later when she made an attempt to telephone her brother, due to resistance and refusal to satisfy his desire, he poured kerosene and lit match stick by throwing on her, closed the doors and bolted the doors from outside. On hearing cries, her neighbours and brothers came there and rescued her. The statement was read over and explained to her in Telugu and admitted to be true and correct. He obtained her signature and also obtained the certificate from the duty doctor who was present there. Recording of statement was completed by 5:50 AM on the same day. Ex.P-15 is the dying declaration recorded by the Magistrate. In the cross-examination, P.W.13 admitted that, he did not obtain certificate from the duty doctor with regard to mental state and consciousness of the victim before proceeding to record her statement and did not specifically question the victim to know about her mental condition to give statement after disclosing his identity and that the injured victim did not specifically say that a match stick was used to set fire to her. Taking advantage of these admissions, learned counsel for the appellant contended that the dying declaration recorded by P.W.13 marked as P.15 cannot be relied upon, as Ex.P-15 is lacking certification from the doctor as to the fit state of mind or mental condition of the injured victim before recording her statement., No doubt, in normal course of events, the Magistrate has to obtain certification as to fit state of mind of the injured before commencement of recording her statement. But, for one reason or the 15 HACJ & MSMJ CrlA_226_2013 other, the Judicial Magistrate of First Class (P.W.13) did not obtain such certification before commencement of recording of her statement. But, effect of failure to obtain certificate from the duty doctor before commencement of recording of statement of injured victim is insignificant, in view of the change in the law.
In an unreported judgment of the Apex Court in Poonam Bai v. State of Chattisgarh15, held that, there cannot be any dispute that a dying declaration can be the sole basis for convicting the accused. However, such a dying declaration should be trustworthy, voluntary, blemishless and reliable. In case the person recording the dying declaration is satisfied that the declarant is in a fit mental condition to make the statement and if there are not suspicious circumstances, the dying declaration may not be invalid solely on the ground that it was not certified by the doctor. Insistence for certification by the doctor is only a rule of prudence, to be applied based on the facts and circumstances of the case. The real test is as to whether the dying declaration is truthful and voluntary. It is often said that man will not meet his maker with a lie in his mouth.
At the same time, the Apex Court in State of Madhya Pradesh v. Dal Singh16 held that, certificate of doctor that maker of dying declaration was fit to make statement is not necessary in every case. Law does not provide who can record a dying declaration, nor is there any prescribed from, format, or procedure for the same. The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. 15
Crl.A.No.903 of 2018 dated 30.04.2019 16 AIR 2013 SC 2059 16 HACJ & MSMJ CrlA_226_2013 Moreover the requirement of a certificate provided by a doctor in respect of such state of the deceased is not essential in every case. Subject of the evidentiary value and acceptability of a dying declaration must be approached with caution for the reason that the maker of such a statement cannot be subjected to cross examination.
In view of the law declared by the Apex Court in the judgments referred supra, failure to obtain certification from the duty doctor is not a ground to reject the dying declaration recorded by the Magistrate.
Thus, the certification of duty doctor before commencement of recording of statement of the injured victim is not mandatory and that would not vitiate the entire statement of the victim. Therefore, whatever elicited in the cross-examination about failure of P.W.13, to obtain certification from the duty doctor before commencement of recording is of no avail to the appellant/accused. Even according to the evidence of P.W.13, he put certain questions to injured Naga Subbamma to know whether she is conscious or not. After obtaining certification from the doctor, he recorded dying declaration. On perusal of Ex.P-15, it is clear that the doctor certified the condition of the patient at two places i.e. at Page No.2 of Ex.P-15 below the signature of Naga Subbamma and also at the end of the page. But, both the certificates disclose the time at 5:50 A.M only. Even assuming for a moment that the certification is not in accordance with the procedure, that by itself if not sufficient to discard Ex.P.-15.
P.W.15 also recorded statement of Naga Subbamma, the injured, which is the basis for registration of crime and issue of F.I.R which is marked as Ex.P-18. After recording statement by P.W.13, 17 HACJ & MSMJ CrlA_226_2013 marked as Ex.P-15, again P.W.15 recorded statement of injured Naga Subbamma which is marked as Ex.P-20. There is consistency in the dying declaration Ex.P-15 and statements Exs.P-18 & P-20, as to the cause of injuries on the body of Naga Subbamma, except subsequent events after setting fire to the body of Naga Subbamma and the contents of statements of Naga Subbamma are extracted in the following table for better appreciation of the case:
Ex.P-15 Ex.P-18 Ex.P-20 At about 2.00 AM I came I am a native of I am residing in the above to outside to go to bath- Batavaripalli, Kalakada said address. I am a room. In the meanwhile Mandal. I belong to house wife. My husband Abdul Azeem who is a Thogata caste. My does loom work. Both of resident of Thimmapuram husband works on loom. us are living happily. We cross road came into my Both of us are jointly have two female children house. On seeing it, I tried living happily in the above 1) Navitha, age 8 years, 2) to telephone to my elder said address. We have two Nikitha, age 6 years. Since brother and then he took female children, Navitha, the loom work done by my it away from myself age 8 years and Nikitha, husband was running telephoning to my elder age 6 years. As the loom properly and there was no brother. Then I asked him work was not running proper income, about 2 as to why you came here. properly, about 2 years years back my husband My husband is in Kuwait back he had gone to left for Kuwait and he and myself and my Kuwait and came back on returned back in the children are in the house 04.12.2010 and he again month of December and and I tried to escape from went to Kuwait on 6th of again went to Kuwait on
there. But he bolted the this month. While so 06.01.2011. While so door of the house and about one year back, I got about 1 year back I got threw me aside and he acquaintance with Shaik acquaintance with one desired to have myself and Abdul Azeez, S/o Khader Abdul Azeem, S/o Khader for which, I did not agree. Basha, age 30 years, Basha, resident of Then he poured kerosene resident of Thimmapuram Thimmapuram cross, K.V. on my body and set fire cross, K.V. Palli Mandal Palli Mandal through my and I tried to catch him through my sister, younger sister Prasuna. but he kept me in the Prasuna. He often talks From then onwards, we house and bolted the with me over phone. both of us talked each door on front side and Because of acquaintance other over cell phone escaped from there. I between us, he likes me because of the cried loudly. Later my and he used to ask me to acquaintance between us, elder brothers came and have his desire and I used Azeem said that he likes rescued me. to reject his desire in good me and wanted me to manner. While so on the have his desire and also intervening night to compelled me often. But I 09/10.01.2011 I and used to refuse it smoothly.
along with my two While so on the
children slept in the intervening night of
house. At about 3.45 A.M 09/10.01.2011 while
when I woke up and went myself along with my two
into bath-room and came children were sleeping in
into the house, Azeez was the house and at about
there and taking 3.45 AM I came out of the
advantage of acquaintance house to go to bathroom. I
between us, he forced me belong to Thogata caste.
to have his desire. For My husband works on
18 HACJ & MSMJ
CrlA_226_2013
which I did not accept loom. Both of us are
and I quarrelled with jointly living happily in
him that I was married the above said address.
and have children. For We have two female
that he stated that he children, Navitha, age 8
was waiting for the last years and nikitha, age 6
one year and if I do not years. As the loom work
surrender to him, he was not running properly,
would murder me and by about 2 years back he had
saying so, he took gone to Kuwait and came
kerosene can that was back on 04.12.2010 and
available by the side and he again went to Kuwait
poured on my body and on 6th of this month.
set fire. While my body While so about one year
was in flames, I came back, I got acquaintance
out of the house by with Shaik Abdul Azeez,
crying loudly and he S/o Khader Basha, age 30
escaped from there. years, resident of
Later the neighbouring Thimmapuram cross, K.V.
people brought me to Palli Mandal through my
Government Hospital, sister, Prasuna. He often
Piler and admitted in the talks with me over phone.
hospital for treatment. On Because of acquaintance
your examining me, I between us, he liked me
stated the things that had and he used to ask me to
happened and read over have his desire and I used
to me and found to be to reject his desire in
correct. smoothly. While so on the
intervening night of
09/10.01.2011 I and
along with my two
children were in the
house. At about 3.45 AM
when I woke up and went
into bathroom and came
into house, Azeez was
already there and taking
advantage of
acquaintance, he
compelled me to have his
desire and I did not agree
for it and stated to him
that I am married and two
child were born and not to
talk with me like and it
was not good one and
quarrelled with him. For
which he uttered that he
was waiting for the past
one year for me and if you
do not surrender to him
and he would murder me.
By saying he took
kerosene can available by
the side and poured
kerosene on my body and
set fire and my body was
attacked by fire and I was
unable to bear the
burnings and came out of
the house by crying
loudly. By that time Azeez
escaped from there. On
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hearing the cries of
myself, petty shop owner
Anand, my senior
maternal aunt's son
Subramanyam and his
wife came and put off the
flames. By then my both
legs and hands, stomach,
chest and face sustained
burnt injuries. Then I was
admitted in Government
Hospital, Piler through
108 Ambulance by Anand,
Subramanyam and his
wife for treatment.
Thereafter you being the
S.I of Police, Piler
enquired me and I stated
the things that had
happened.
A dying declaration can be used as a substantive piece of evidence on the presumption that, if the declaration passes the test laid down by the Supreme Court in various judgments, its reliability is based on surrounding circumstances. The reason for accepting dying declaration is only by way of necessity, as there is no possibility of cross-examining the declarant or the person who gives statement to the Magistrate or any third party, based on the Latin Maxim nemo moriturus praesumitur mentire, which means "a man will not meet his Maker with a lie in his mouth".
Time and again the Apex Court laid down certain guidelines to base conviction on dying declaration or the statement of the deceased.
In the present case, there are three statements of Naga Subbamma recorded by P.Ws. 13 & 15. The first statement was recorded by P.W.13 - Judicial Magistrate of First Class and the other two statements were recorded by P.W.15 - Sub-Inspector of Police, which is the basis for registration of crime and issue of First Information Report - Ex.P-2. The statements were recorded under 20 HACJ & MSMJ CrlA_226_2013 Section 161(3) Cr.P.C during investigation, as crime was registered for the offences punishable under Section 302 I.P.C.
When there are multiple dying declarations, the Supreme Court laid down certain guidelines to appreciate the evidence to find out as to which of those dying declarations can be believed. But, before deciding variance in the dying declarations, it is appropriate for this Court to advert to the principles laid down by the Apex Court for appreciation of evidence based on dying declaration.
In Bhajju @ Karan Singh v. State of M.P17 the Division Bench of the Supreme Court laid down seven guidelines to base conviction of the accused for the grave offences punishable under Section 302 I.P.C and they are as follows:
i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration [Mannu Raja v. State of M.P (1976) 2 SCR 764]
ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration [State of M.P. v. Ram Sagar Yadav (AIR 1985 SC 416; Ramavati Devi v. State of Bihar (AIR 1983 SC 164)]
iii) The Court has to scrutinize 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 [Ram Chandra Reddy v. Public Prosecutor (AIR 1976 SC 1994)]
iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence; [Rasheed Beg v.
State of Madhya Pradesh (1974) 4 SCC 264)]
v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected; [Kake Singh v. State of Madhya Pradesh (AIR 1982 SC 1021)]
vi) A dying declaration which suffers from infirmity cannot form the basis of conviction; [Ram Manorath v. State of Uttar Pradesh (1981 SCC (Crl.) 531)] 17 2012 AIR (Criminal) 400 21 HACJ & MSMJ CrlA_226_2013
vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. [State of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617)] In Smt. Paniben v. State of Gujarat18 the Supreme Court laid down ten principles, but first seven are common in Bhajju @ Karan Singh v. State of M.P (referred supra) and the remaining three principles are as follows:
"viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. [Surajdeo Oza v. State of Bihar (AIR 1979 SC 1505)]
ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail [Nanahau Ram and another v. State (AIR SC 912)]
x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [State of U.P. v. Madan Mohan (AIR 1989 SC 1519)]. In the light of the above principles, we will consider the three dying declarations in the instant case and we will ascertain the truth with reference to all dying declaration made by the deceased Bai Kanta. The Apex Court in [Mohanlal Gangaram Gehani v. State of Maharashtra (AIR 1982, S.C. 839)] referred to held:
"Where there are more than the statement in the nature of dying declaration, one first in point of time must be preferred".
Of course, if the plurality of dying declarations could be held to be truth worthy and reliable, they have to be accepted. These guidelines are again reiterated by the Supreme Court in Muthu Kutty and another v. State by Inspector of Police19 and Sunder Lal v. State of Rajasthan20.
Moreover, it is the consistent view of the Apex Court in all the judgments referred supra that, though a dying declaration is entitled 18 1992 AIR 1817 19 2004 (6) Suppl SCR 222 20 (2007) 10 SCC 371 22 HACJ & MSMJ CrlA_226_2013 to great weight, it is worthwhile to note that the learned counsel for the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. The Apex Court has laid down in several judgments the principles governing dying declaration, which are summed up in the earlier paragraphs as indicated in Smt. Paniben v. State of Gujarat (referred supra).
Thus, from the law declared by the Apex Court in various judgments, the Court has to satisfy itself that the injured was not tutored or prompted by any person and that the statement was given voluntarily in fit state of mind and truthful, taking into consideration of the surrounding circumstances of the case.
In Raju Devade v. State of Maharashtra21, the Apex Court while appreciating the evidence on record when a conviction was recorded based on dying declaration referred certain tests in 21 2016 (3) RCR (Criminal) 700 23 HACJ & MSMJ CrlA_226_2013 paragraph 21 of the said judgment, which states that, the test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the court in such matters. Therefore, keeping in mind the various tests laid down by the Apex Court we would like to examine the truthfulness of the dying declarations to decide the legality of conviction recorded by the Trial Court finding the accused guilty for the offence punishable under Section 302 I.P.C.
It is an undisputed fact that dying declaration in a statement of injured victim as to who caused injuries on the body which ultimately resulted in death of Naga Subbamma. But, such statement need not be given only when she was about to die and such statement has to be viewed with great caution, since life and liberty of an individual is involved. Therefore, statement of injured must be with reference to the person who is responsible for causing injuries or caused injuries.
A bare look at the entire three English translated dying declarations extracted above, the statement with regard to cause of injuries and the person as to who caused injuries which resulted in death are consistent. In all the statements, the declarant Naga Subbamma consistently stated that the appellant/accused caused injuries by pouring kerosene and set her body to fire in the wee hours of the day, when she refused to satisfy his sexual desire, taking 24 HACJ & MSMJ CrlA_226_2013 advantage of his acquaintance with her. The statement of Naga Subbamma with regard to cause of injuries or the person who caused injuries is not varying from one statement with the other. Even, the evidence of P.W-13 is also consistent that she was in fit state of mind to give statement and after satisfying himself about her mental condition, he recorded the statement of Naga Subbamma, after putting certain questions as to her ability to give statement and the mental condition and consciousness. Apart from that, Naga Subbamma received 85% thermal burn injuries, which are superficial, which resulted in her death. Even a person who received 100% thermal burn injuries will be able to speak and mental condition of such person would be normal. Therefore, basing on the percentage of thermal burn injuries found on the body, it is difficult to disbelieve the dying declarations. The first dying declaration was recorded and completed by P.W-13 at 5:50 A.M on 10.01.2011. Similarly, P.W.15 received hospital intimation Ex.P.17, when he was in the police station and recorded statement of the deceased Ex.P-18 at 5:15 A.M, as per the certificate of Civil Assistant Surgeon, Community Health Centre, Piler. Even according to the statement recorded by P.W.15, there is any amount of consistency in the statement to inculpate the appellant/accused in the grave crime as to the cause of injuries and who caused burn injuries. But, there is little improvement or the inconsistency as to the time of occurrence. But, such minute details are not expected from a woman who suffered 85% of thermal burn injuries in the incident. The minor inconsistency as to the time can be ignored and it is insignificant.
25 HACJ & MSMJ CrlA_226_2013 Coming to the statement of Naga Subbamma recorded under Section 161(3) Cr.P.C by P.W.14, the cause of injuries and person caused injuries is consistent. But, there is some improvement with regard to subsequent event that the appellant/accused tried to escape and leave the house of Naga Subbamma when she caught hold of him. Whether the appellant/accused bolted the doors of the house from outside after pouring kerosene on her and set fire to her or whether she came out and raised cries, attracting the attention of her neighbours are inconsequential, when her statement is consistent as to the cause of injuries and the person who caused burn injuries on her body and the circumstances leading to causing such injuries which lead to her death.
When Naga Subbamma was admitted in hospital, immediately after the incident there were none to tutor or prompt her to give statement against the appellant/accused. That apart, she is living at a distant place. The appellant/accused came to the house of the deceased Naga Subbamma at the wee hours to satisfy his sexual desire. But, when she refused, he poured kerosene on her body with an intention to do away with her life or to put end to her life. Therefore, in the absence of any material about the presence of third parties at the time of recording or before commencement of recording of statement, the question of tutoring or prompting can be ruled out and similarly, the suggestion to the Magistrate who recorded Ex.P-15 and the evidence of P.W.15 who recorded Exs.P-18 & 20 is sufficient that, she was in fit state of mind to give statement. So far as voluntariness in the statement of Naga Subbamma is concerned, the incident took place in the early hours of 10.01.2011 and she was 26 HACJ & MSMJ CrlA_226_2013 shifted to hospital by the neighbours, including her brother in a hurry to save her life on account of extensive thermal burn injuries, she received in the incident. In such case, in the absence of any animosity or enmity between the appellant/accused, who belongs to a different religion, Naga Subbamma and the persons who shifted her to hospital, the question of tutoring or prompting does not arise and in the absence of any material to establish that there was any enmity or animosity between Naga Subbamma and the appellant/accused or between the appellant/accused and the neighbours who shifted her and the appellant/accused, it can safely be concluded that the statement of Naga Subbamma recorded by the Judicial Magistrate of First Class marked as Ex.P-15 is voluntary.
If, Naga Subbamma really intended to inculpate the appellant/accused intentionally, the minor inconsistency with regard to time and the incident causing thermal burn injuries would be consistent. The minor variation in the statement with regard to bolting of doors and her coming out of the house by raising cries is a guarantee of truth, since the minor inconsistency in the evidence of the witness is guarantee of truth as per the law laid down by the Courts. Therefore, based on such minor improvement to the incident, has least importance.
Learned counsel for the petitioner Sri Masthan Naidu Cherukuri while contending that, unless the dying declaration is corroborated by independent testimony, it cannot be relied upon, in view of the inconsistency he pointed out and drawn attention of this Court to the judgment of the Supreme Court in State of Punjab v. Parveen Kumar (referred supra), where the Supreme Court was of the 27 HACJ & MSMJ CrlA_226_2013 view that, when several dying declarations creates doubt about their truthfulness, mere fact that name of the accused was common in all the dying declarations, it is not sufficient to convict the accused and truthfulness of the declarations can be tested on the basis of other reliable corroborative evidence. In the facts of the above judgment, three dying declarations were made by the deceased woman, before the Judicial First Class Magistrate and Sub-Inspector of Police. In view of stating about the alleged dying declaration for the first time at the stage of trial and in the statement recorded under Section 161(3) Cr.P.C, made in the course of investigation, he having not disclosed about it, the Court cannot rely on such oral declaration.
In State of Gujarat v. Jayrajbhai Punjabhai Varu (referred supra), the Apex Court had an occasion to deal with multiple dying declarations and summarized certain principles, as to appreciation of multiple dying declarations, wherein, the Apex Court was of the view that the Courts must be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross- examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is extremely dangerous. The Court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration.
28 HACJ & MSMJ CrlA_226_2013 The Division Bench of this Court in Rapathati Venkateswarlu v. State of A.P., rep. by its Public Prosecutor, Hyderabad22 relying on the judgment of the Apex Court in State of Punjab v. Parveen Kumar (referred supra), laid down an identical principle. The law declared by the Apex Court is not in quarrel. But the holistic view of the facts and evidence on record is to be considered while appreciating evidence on record, more particularly, when the Trial Court placed reliance on the dying declarations despite minor inconsistencies. But, the Apex Court time and again laid down certain tests to decide the truthfulness, voluntariness, tutoring and prompting. In view of the law declared, the Court must test the truthfulness and other relevant factors referred above, while appreciating evidence.
Even otherwise, the deceased Naga Subbamma was an illiterate and rustic village woman and she is not expected to give statement with photographic memory.
Learned counsel for the appellant contended that dying declaration is not believable due to inconsistent and placed reliance on the Division Bench of the Supreme Court in Keshav Dada Sangale & another v. State of Maharashtra23, wherein, it was held as follows:
"When two dying declarations were on record, some narration totally absent in one dying declaration and those declarations are inconsistent and material variance, thereby dying declaration is unreliable and the accused is entitled for acquittal."22
2018 (2) ALT (Crl.) 212 (DB) (A.P) 23 2012 Crl.L.J. (NOC) 180 (Bom.) (Aurangabad Bench 29 HACJ & MSMJ CrlA_226_2013 In similar circumstances, in Nallam Veera Satyanandam and others v. Public Prosecutor, High Court of A.P24, the Apex Court held as follows:
"When a dying declaration was recorded by the Magistrate following procedure which excludes the involvement of accused and the second statement was recorded within 10 minutes after the first statement by Head Constable which includes the involvement of accused, it would be more appropriate to rely upon the earlier dying declaration rather than later one."
In the facts of the above decision, the Magistrate recorded dying declaration which excludes the involvement of accused, but surprisingly the Head Constable recorded another statement within 10 minutes after the first statement, in which the declarant implicated the accused persons. In those circumstances, the Apex Court held that the first statement is to be preferred.
In the facts of the above decision shows that the injured himself poured kerosene and set fire due to harassment for payment of interest on the money advanced, but the surrounding circumstances goes to show that the cause of injuries is accidental as per medical record. Therefore, the Apex Court disbelieved the dying declaration as it is not reliable.
In State of Maharashtra v. Sanjay D.Rajhans25, the Apex Court held that, when there are more than one dying declarations, its reliability is based on surrounding circumstances since plurality of dying declarations that adds weight to prosecution case but their qualitative worth is liable to be considered and dying declaration should be of such nature as to inspire full confidence. 24
AIR 2004 S.C. Page 1708 25 AIR 2005 SC. 97 30 HACJ & MSMJ CrlA_226_2013 Similarly, the Apex Court in J.Ramulu v. State of A.P with G.Venkatesh v. State of A.P26, discussed about reliability of dying declarations when the deceased suffered multiple burn injuries on face, neck and chest due to acid allegedly thrown by accused and unable to see or speak. The police officer recorded the statement immediately after the incident and not adduced any evidence, but named the accused in the statement recorded by the Magistrate after few days from the date of hospitalization. The declaration was recorded only on the signs and gestures were detailed and lengthy. Therefore, there is possibility of tutoring to implicate the accused and disbelieved the second dying declaration.
In the facts of the above decision, G.Janardhan was admitted in Yashoda Hospital, Malakpet on 08-07-2000 and immediately he stated that some unknown offenders had thrown acid on the face of injured Janardhan, the general diary number column in the FIR has been left blank, which would suggest that the first recorded information being the intimation by the hospital authorities referring to unknown persons as the culprits, but on the evening of 09-07-2000, another statement was recorded by the Magistrate naming A.1 and A.2 and it appears that it was only due to tutoring by the relatives as they were attending on the injured Janardhan. Therefore, the second dying declaration cannot be believed as it is not free from doubt and embellishment.
26
2008 Crl.L.J. 1918 31 HACJ & MSMJ CrlA_226_2013 The Apex Court relied on a judgment of P.Mani Vs. State of T.N27, where the Hon'ble Apex Court held that conviction can be recorded on the basis of dying declaration alone but the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the Court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion is no substitute for proof. If evidence brought on record suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors: physical and mental condition of the deceased is one of them. The Apex court finally disbelieved the dying declaration.
In Madaram Gopal Reddy v. State of A.P28, Division Bench of this Court held that, it is well settled that if the dying declaration inspires confidence and is free from any tutoring and if no taint is attached to the dying declaration, it can form the basis for conviction, in the absence of any direct evidence.
In the facts of the above decision, the dying declaration was made to the Magistrate stating that her mother-in-law quarreled with her due to which she became angry and came out of the house to go to her parents' house, then her mother-in-law forcibly brought her back into the house, in the night her husband scolded her by threat. He also beat her telling her to leave their house. At that time, he was 27 (2006) 3 SCC 161 28 2009(3) ALT (Crl.) 106 (DB) (A.P.) 32 HACJ & MSMJ CrlA_226_2013 fully in drunken state and poured diesel on her at about 3.30 a.m. and lit her on fire. Whereas, in the dying declaration recorded by the S.I. of Police, which is nothing but Section 161 of Cr.P.C. statement, she stated that at 3.30 p.m. she was going to toilet through verandah, the husband poured diesel on her and lit her on fire. She did not state the fact that the incident took place while she was going to toilet to the Magistrate when he recorded the dying declaration. Upon thorough examination of all the three dying declarations, the Hon'ble Court noticed some material inconsistencies and improvements on the material aspects. So, it is clear from the statement of deceased recorded by S.I. of Police that only on the arrival of her mother, the deceased stated that the reason for receiving her burn injuries was not accidental and the injuries were received because her husband poured diesel and set her on fire. Therefore, it is not possible to rule out the fact of tutoring by her parents after their arrival. So, it is not possible to place reliance on any particular dying declaration.
In Shivkumar Maruti Umardand v. State of Maharashtra29, the Division Bench of Bombay High Court held that when the wife received burn injuries, two dying declarations implicating her husband were at variance on two crucial aspects i.e. the manner in which the incident took place and location of incident. In the first dying declaration of wife, she mentioned that her husband extinguished fire. The credit given to her husband was withdrawn in subsequent dying declaration implicating her husband, who sustained injuries in the incident. Therefore, disbelieved the later declaration.
29
2009 Crl.L.J. 2549 33 HACJ & MSMJ CrlA_226_2013 The sum and substance of the above principles laid down in the above decisions and including various High Courts is that when there is inconsistency in the multiple dying declarations on material aspects, the Court cannot base conviction on the dying declaration and Court must insist corroboration.
In view of the law declared by the Apex Court, on multiple dying declarations, if they passed the tests referred above, Court can record conviction when there is no consistency as to the cause of injuries and the caused injuries. We have already discussed about the circumstances of cause for burns on the body of Naga Subbamma by the appellant/accused and the consistency in the statements marked as Exs.P-15, 18 & 20, as to the cause of injuries or who caused injuries on her body, are insignificant, consequently we have no hesitation to conclude that this appellant/accused is the person who caused burn injuries on the body of Naga Subbamma, due to which she succumbed.
The Trial Court after appreciation of evidence on record with reference to the law laid down by various Courts, rightly concluded that the appellant/accused poured kerosene and set her ablaze with an intention to kill her knowing that those injuries are sufficient in normal course of events to kill her and such fact finding recorded on appreciation of evidence cannot be disturbed by this Court lightly, unless this Court finds that the findings are perverse. But, we find no such perversity or illegality warranting interference in appreciation of evidence to interfere with the findings recorded by the Court below.
Besides dying declaration of injured Naga Subbamma, there is circumstantial evidence like recovery and seizure of chappals and Sim 34 HACJ & MSMJ CrlA_226_2013 Card damaged mobile phone, during observation of scene of offence under the cover of observation report. When the case is based on direct and circumstantial evidence, the Court has to appreciate the evidence, taking into consideration of surrounding circumstances and such proved circumstances must directly point out the complexity of the accused without giving scope for any reasonable hypothesis and inconsistence with the innocence of the accused. One of the circumstances relied on by the prosecution is finding chappals, sim card, mobile at the scene of offence. But the prosecution miserably failed to prove that those chappals belong to the appellant/accused and no service provider is examined to prove that the sim card was issued in the name of the appellant/accused. In the absence of evidence of service provider, it is difficult to connect the accused with the offence based on the material collected at the scene of offence, marked as M.Os.1, 4,5 under the cover of observation report, marked as Ex.P-9.
Yet, another circumstance relied on by the prosecution is seizure of M.Os. 6 & 7 under the cover of Ex.P-11 on the basis of confession leading to discovery. As seen from Ex.P-11, coupled with evidence of P.W.10 - Village Revenue Officer, he along with one M. Srinivasulu accompanied Sub-Inspector of Police, went to Yerramgutta village where the house of deceased is situated, observed scene of offence and seized M.Os.1 to 4 & 5 under the cover of Ex.P-9. Later, they went to Timmapur of K.V.Palli Mandal, reached the house of the accused, apprehended the accused and when he tried to run away, he was surrounded and arrested, in their presence, the appellant/accused was interrogated and made a confession leading to 35 HACJ & MSMJ CrlA_226_2013 discovery, while assuring to produce his half burnt clothes, if anybody accompany him. On the basis of admissible portion in the confessional statement marked as Ex.P-10, the accused lead them to the house of P.W.9 - Saifulla, produced his half burnt cement colour night pant and T-Shirt, and the same were seized under the cover of panchanama, marked as Ex.P-11. M.Os.6 & 7 are partly burnt T- Shirt and pant. In the cross-examination, nothing was elicited to disprove or discredit the evidence of P.W.10 with regard to arrest of the accused, making a confession leading to discovery and seizure of M.Os. 6 & 7 in pursuance of the confession leading to discovery. But, this fact is not supported by the evidence of P.W.9 and M.Os.6 & 7 were produced before the police, though he was cross-examined by P.W.1 - independent witness, not interested in either prosecution or the deceased.
Merely because, P.W.9 did not speak the factum of seizure of M.Os. 6 & 7, the evidence of P.W.10 cannot be brushed aside. Therefore, seizure of half burnt pant, M.O.6 and half burn T-Shirt - M.O.7 under the cover of Ex.P-11 is established and this is one of the strongest circumstance to link the accused with the offence and to prove the presence of the appellant/accused at the scene of offence and receiving of injuries by the appellant/accused in the same incident.
Though, the evidence of confession leading to discovery is relevant, to accept such recovery, he must be in judicial custody. Section 27 of the Indian Evidence Act is an exception to Sections 25 and 26. The conditions necessary for invoking the aid of the Section are as follows:
36 HACJ & MSMJ CrlA_226_2013
a) there must be a discovery of a fact albeit relevant fact in pursuance of an information received from a person in police custody;
b) the discovery of such fact must be deposed to ;
c) at the time of giving information the accused must be in police custody; Then the effect is that so much of the information as relates distinctly to the fact thereby discovered is admissible. What is allowed to be proved is the information or such part thereof as related distinctly to the fact thereby discovered.
Discovery evidence is not substantive evidence (vide Dinakar v. State30]. Similarly, in Inspector of Police, Tamil Nadu Vs. Balaprasanna31, the Apex Court held as follows:
"Law is well settled that the prosecution while relying upon the confessional statement leading to discovery of articles under Section 27 of the Evidence Act, has to prove through cogent evidence that the statement has been made voluntarily and leads to discovery of the relevant facts. The scope and ambit of Section 27 of the Evidence Act had been stated and restated in several decisions of the Supreme Court. However, in almost all such decisions reference is made to the observations of the Privy Council in Pulukuri Kotayya vs. Emperor, AIR 1947 PC 67. At one time it was held that the expression 'fact discovered' in the second is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression 'fact discovered' includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kotayya's case. The various requirements of the section can be summed up as follows:-
1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
2) The fact must have been discovered.
3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act.30
AIR 1970 Bombay page 438 31 2009(1) ALD (Crl.)(SC) page 113 37 HACJ & MSMJ CrlA_226_2013
4) The person giving the information must be accused of any offence.
5) He must be in the custody of a police officer.
6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
In view of the principle laid down in the above decision, when a fact is discovered in pursuance of confession leading to discovery is only relevant piece of evidence, but it is not a substantive piece of evidence.
In the present facts of the case, in view of the consistent independent evidence of P.W-10, recovery of M.Os. 6 & 7 under Ex.P-11 is liable to be accepted, as there is nothing to disbelieve the independent testimony of P.W.10 with regard to recovery. The prosecution established the seizure of M.Os.6 & 7 under the cover of Ex.P-11 which directly points out the involvement of the accused in the said crime.
Yet another circumstance to believe the presence of the accused at the scene of offence is sustaining thermal burn injuries on his body. This fact is supported by medical evidence of P.W.12 - Dr. P. Roopanand who examined the appellant/accused on production before him for treatment by P.C.No.1026 and found the following injures on his body.
1. A superficial burns of 1 ½ x 1 inch on right thigh anterior aspect
2. Superficial burns 1 ½ x ½ inch on left hand on dorsal aspect on lateral side
3. tips of middle, ring and little finger of left hand are burns of ½ x ½ cm.
38 HACJ & MSMJ CrlA_226_2013 Total burns are between 01-03 %. The Doctor also opined that the injuries are simple in nature and less than 12 hours duration and could have been caused due to thermal burns. Ex.P-13 is the wound certificate of the appellant/accused. The witness was not cross- examined, denying sustaining of burn injuries by the appellant/accused. Therefore, sustaining burn injuries by the appellant/accused is undisputed. Even in the examination of the appellant/accused under Section 313 Cr.P.C, he did not explain the injuries found on his body, except denial of the entire incriminating circumstances that were put to him in his examination under Section 313 Cr.P.C. Therefore, sustaining injuries in the same incident is not in dispute. This evidence is sufficient to accept his presence and sustaining injuries in the same incident of burning. If really, the accused made an attempt to save her life, he would not have sustained such minor injuries of 1 - 3 % on his body. Then, what would be the conduct of the accused after the incident in normal course, if he had made an attempt to save her life is to be looked into. In ordinary circumstances, if really, the accused had any intention to save her life, he would have raised cries atleast to attract the attention of the neighbours to save her life or atleast he would have poured water or covered the body of Naga Subbamma with thick cloth. Instead of doing so, he came out of the house without raising any cries to attract the attention of others to save Naga Subbamma and left the house.
When the appellant/accused sustained injuries and the same was proved by prosecution examining P.W.12 coupled with Ex.P-13 Wound Certificate, it is for the injured to explain the injuries on his 39 HACJ & MSMJ CrlA_226_2013 body. In fact, it was not his case at any stage that he made an attempt to save her life. Even in examination of the accused under Section 313 Cr.P.C, he did not state anything for question No.18, except stating that a false case is foisted against him. Similarly in the cross-examination of any of the witnesses, no suggestion was put to them that atleast the appellant/accused made an attempt to save her life and in that process he received injures.
In view of our foregoing discussion and in the absence of any explanation by the appellant/accused about the injuries found on his body and explanation in the examination under Section 313 Cr.P.C, it is difficult to accept any contention that he made an attempt to save the injured Naga Subbamma. Therefore, the evidence conclusively established the presence of the appellant/accused at the scene of offence sustaining injuries and except the accused, no other person was present in the house to come to any different conclusion that the appellant/accused did not cause such injuries or to commit suicide by herself, in the absence of any other reason.
Learned counsel for the appellant/accused contended that the burden of proof totally lies on the prosecution and the legal burden always lies on the prosecution to establish that it is beyond reasonable doubt. But, the onus of proof shifts from one party to the other and this Court cannot place onus of proof either on the prosecution or on the defence. When such burden is placed on the accused i.e. defense, in Toran Singh v. State of Madhya Pradesh (referred supra) the prosecution rested on its strength and conviction recorded by the Court below cannot be sustained. Similar view was expressed in Mangu Singh v. Dharmendra and another (referred 40 HACJ & MSMJ CrlA_226_2013 supra). In the facts of the above judgment, the respondent therein allegedly came to police station and confessed to having killed his wife and daughter. P.W.1 lodged another FIR against his son-in-law for having committed murder of his daughter through a gunshot injury and also of his wife by throttling. Accused allegedly wanted to get rid of victims so that he could marry his love. The Trial Court convicted the respondent. The High Court allowed appeal, as both FIRs were ante-timed and eyewitnesses were unreliable and motive is not established. The Supreme Court held that the facts are admissible under law as it is not the material recovery which has to be proved, but the disclosure based upon which recovery is made. The pivotal fact is making of the statement to police which leads to discovery was conspicuously missing, thus, held that the High Court rightly pointed out that during investigation, no statement which could assist the prosecution and disclosing the material which was recovered was proved before the Court, though the recovery itself was proved.
If, this principle is applied to the present facts of the case, at best, the legal burden is always on the prosecution to prove. But, non-explanation of injuries alone cannot be the basis, though the Court to rest its conviction.
No doubt, the legal burden can only be on the prosecution. But, failure to explain the injuries is an additional link to connect the accused. The Court cannot base its conviction shifting the initial legal burden on the defence i.e. for its failure. The Trial Court in the present facts of the case did not totally rely on the injuries on the body of the appellant/accused to record its conviction, but, relied on such strong circumstance. That is one of the additional link which 41 HACJ & MSMJ CrlA_226_2013 unerringly pointing out the complexity of the accused and inconsistency of his innocence. Thereby, even by applying the principles laid down in the above judgments, it is difficult for this Court to reverse the findings recorded by the Trial Court, in view of the evidence, more particularly, the evidences of P.Ws-13 & 15 and Exs.15, 18 & 20 and substantial evidence i.e. confession made by the accused leading to discovery of M.Os.6 & 7 i.e. T-shirt and pant, which is an additional circumstance coupled with the injuries found on the body of the appellant/accused. In such circumstances, it is difficult for this Court even on reappraisal of entire evidence to acquit the appellant/accused for the offence punishable under Section 302 I.P.C, finding him not guilty. Hence, we are of the firm view that the Trial Court did commit no error in appreciation of the entire of evidence, which warrants no interference by this Court while exercising power under Section 374(2) Cr.P.C, consequently, the criminal appeal is devoid of merits and deserves to be dismissed.
In the result, criminal appeal is dismissed, confirming the conviction of the appellant/and sentence in Sessions Case No.4 of 2012 passed by the V Additional District and Sessions Judge, Tirupati. As the appellant/accused is on bail, his bail bonds shall stand cancelled and he is directed to surrender before the Superintendent of Jails, Central Prison, Kadapa District for serving the remaining sentence, if any, forthwith.
42 HACJ & MSMJ CrlA_226_2013 Consequently, miscellaneous applications pending if any, shall also stand dismissed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated: 18.07.2019 SP