Andhra HC (Pre-Telangana)
Shaik Nurjahan vs State Of A.P. on 6 August, 2003
Equivalent citations: 2003(2)ALD(CRI)592, 2003(2)ALT(CRI)291, 2004CRILJ78, II(2003)DMC788
JUDGMENT S.R.K. Prasad, J.
1. This Criminal Appeal is directed against the judgment rendered in the Sessions Case No. 142 of 1995 on the file of Principal Sessions Judge, Khammam, convicting and sentencing A-1 to undergo Rigorous Imprisonment for a period of five years of the offence under Section 304, Part II, IPC.
2. The factual matrix that arise for consideration can be briefly stated as follows :
The deceased Khader Bee is the daughter of A-4 and Shaik Syed Miya, A-1 is the eldest daughter and A-2 is their son. A-3 is the wife of A-2, A-1 deserted her husband long back and living with her parents i.e., A-4 and Shaik Syed Miya. The deceased Shaik Khader Bee also deserted her husband about an year prior to the date of incident and living separately with her two children at Dwarkanagar, Khamam, near the house of her parents. She was running a pan shop near R.T.O. office, located by the side of her parents house cum hotel. It is further alleged that about one month prior to the date of offence, the marriage of Shaikjani Begum, daughter of A-2 and A-3 was performed with one Madar Saheb of Relakayalapalli. But she could not adjust and lead marital life with her husband and returned to her grand parents house on 20-11-1994. On coming to know about the same, A-2 and A-3 who were residing at Palvancha, came to Khammam, on 22-11-1994 to ask their daughter, Jani Begum regarding the reasons for her return from her husband's house and to sent her back to Relakayalapalli to her in laws house. Thereafter, Shaik Jani Begum, went away from the house and did not return. When questioned, the deceased Shaik Khader Bee did not disclose as to where their daughter had been to. Thereupon, A-1 to A-4 picked up quarrel, suspecting that she might have sent away. They insisted her to tell about the whereabouts of their daughter. At about 8.00 p.m. when she was asked to disclose the whereabouts of Jani Begum, the deceased replied that Shaik Jani Begum went away with her boy friend as she did not like her husband Madarsaheb. On this A-1 to A-4 became wild, abused the deceased alleging that she was responsible for Jani Begum's leading immoral life and she did not give proper advice to her by sending her to her husband's house at Relakayalapalli, and in a sudden provocation, on the instigation of A-2 to A-4, A-1 picked up a kerosene lamp and threw on the deceased, and as a result of which, the saree of the deceased caught fire. She sustained 70% of burn injuries and immediately the father of the deceased put off the flames took her to Khammam Police Station, where P.W. 11 the Sub-Inspector of Police, recorded her oral statement. Thereupon, he registered it as a case in Cr. No. 179/94 for the offence Under Section 307 IPC and took up investigation. The deceased was taken to the Government Hospital, Khammam, where she was admitted. P.W. 9, the Special Judicial Magistrate, of I Class, Khammam, recorded her dying declaration on the very same night, under Ex.P-10. On 24-11-1994 death intimation under Ex.P-5 was given by P.W. 5 to the II Town police Station, Khammam. Basing on Ex.P-5 information, Ex.P-12 FIR has been altered from Section 307, IPC to 304II, IPC under Ex.P15 alteration memo. Thereafter inquest was held over the body of the deceased in presence of P.W. 6 inquest panchayatdar under Ex.P-6 inquest report. P.W 8 Dr. K. Satyanarayana Reddy, the then Medical Officer, conducted post mortem examiantion over the dead body of the deceased and opined that the death was due to extensive burns on the body and issued Ex.P-8 post mortem certificate. P.W. 11 took up investigation, after registering Ex.P-12 FIR by P.W. 10 the Head Constable who recorded the statements of witnesses, and on receipt of death intimation from P.W. 5, he altered the FIR Ex.P- 12 from Section 307, to 304- Part II under Ex.P-15 alteration memo. Later, the Circle Inspector of Police charge sheeted the accused for the offence under Section 302, IPC against A-1 and under Section 302 r/w 34, IPC against A2 to A4.
3. The plea of the accused is one of total denial for the respective charges.
4. The prosecution in all examined 11 witnesses, P.W. 1 is Shaik Syed Miya. According to him, about four years back, on a Tuesday, at about 10.00 in the night when he was taking meals, in the hotel-cum-house, he heard cries of his daughter Shaik Khader Bee. Then, he immediately came out and found that his daughter was in flames, and he immediately dragged her out of the shop and extinguished fire with his hands in the process and thereby sustained burn injuries to his hands. A-4 and wife of P.W. 1 took their daughter to the Government hospital. He also speaks about her death. P.W.2 Shaik Jani Begum, speaks that P.W. 1 is her grand father. A-1 is her paternal aunt. The deceased Khaderbee is her younger paternal aunt. According to her version, the deceased Khader Bee sustained burn injuries in her buddy shop and she was admitted in Government Hospital and later she died. This witness was declared as hostile by the prosecution as she did not support the prospection case. P.W.3 Vanaparthy Ashok also did not support prosecution version. Therefore, he was also declared as hostile by prosecution. P.W.4 P. Jagan deposes that. P.W.1 and the deceased Khader Bee were residing in the hotel-cum-house. He used to run his office in his shed which was situated on one side of RTO office and the hotel of P.W.1 is situated on the other side. He closed his office at about 6.00 p.m. on the date of incident. He further deposed that the deceased Khader Bee sustained burn injuries when a burning light fell on her. He was treated as hostile by the prosecution, since he did not support its case. P.W.5 Dr. Koridal Rao sent intimation under Ex.P-5 to Police on 24-11-1994 at about 11.15 a.m. P.W.6 Kamella Ramulu speaks about his acting as inquest panchayatdar and signing on Ex. P-6 inquest report. P.W.7 Ch. Venkateswara Rao speaks about his presence at the time of scene of offence panchanama at a pan shop near the hotel of P.W. 1 on 23-11-1994 at about 9.00 a.m. The police seized the burnt polyster saree piece and petty coat and pieces of glass, which were marked as M.Os. 1 to 3.
P.W.8 Dr. K. Satayanarayana Reddy, speaks about conduction of post mortem examination over the dead body of the deceased on 24-11-1994 at 2.00 pm. and issuing Ex.P-8 Post Mortem Certificate. He has opined that the death of the deceased was due to shock and haemorrhage as a result of superficial burns, 24 to 36 hours prior to his examination. He also opines that these burns are sufficient to cause death of a person in the ordinary course.
P.W.9 is Judicial First Class Magistrate, Special Mobile Court, Khammam. He speaks about recording of dying declaration of the deceased Khader Bee, on a receipt of requisition on 22-11-1994 at 10.00 p.m. at Government Hospital, Khammam, and obtaining the endorsement of duty Medical Officer Dr. Kamala, on the dying declaration recorded by him. He also questioned the deceased at the time of recording the dying declaration as to how, she sustained burn injuries, then she replied that her elder sister threw lighted burning lamp on her when she was angry, and therefore, she sustained burn injuries. P.W.9 also obtained the thumb impression of the deceased on the said statement, read over the contents to the deceased and after having been admitted the contents therein by the deceased, he obtained her thumb impression on Ex.P-10 dying declaration.
P.W. 10 G. Harinath Babu Rao, Head Constable, II town Police Station, Khammam, speaks about receiving of phone intimation on 22-11-1994 at about 11.00 in the night from Government Hospital that a girl had sustained burn injuries and was brought to the Hospital. Thereupon, he rushed to the hospital and recorded the statement of Khader Bee under Ex. P-11 and returned to Police Station. He registered a case in Cr. No. 174/94 Under Section 307, IPC under Ex. P-12 FIR and recorded the statement of the deceased under Ex.-13. P.W.11 S.M. Surendranath, Sub-Inspector of Police, speaks about taking over of the investigation done by P.W. 10, visiting the scene of offence, securing the presence of P.W. 7 and another and conducting scene of offence panchanama in the buddy shop of the deceased and seized M.Os. 1 to 3 under Ex.P.7 mediator report. He also speaks about the examination of the deceased. He has altered the section of law from Section 307, IPC to 304 II IPC on receipt of death intimation from P.W.5 under Ex.P. 15 alternation memo. After trial, the learned Principal Sessions Judge, Khammam, recorded a finding of guilt against A-1 for the offence under Section 304 II, IPC and convicted and sentenced him to undergo R.I. for five years, while acquitting A-2 to A-4 for the offence under Section 302 r/w 34, IPC. Aggrieved by the conviction and sentence awarded by the learned Sessions Judge, A-1 has preferred this Criminal Appeal.
4A. The point that arise for consideration is whether the prosecution has proved the guilt of the accused beyond all reasonable doubt for the offence under Section 304 II, IPC.
5. The entire case against A-1 depends upon acceptance of Ex. P-10, dying declaration and Ex.P-11 statement of deceased given to P.W. 10. Other witnesses turned hostile and did not speak anything about the case of the prosecution and did not support the version that the 1st accused threw kerosene lighted lamp over Khader Bee in a fit of anger. This Court has also to consider whether the dying declaration recorded by the Magistrate is truthful, reliable and can be acted upon. The Dying Declaration is admissible under Section 32(1) of the Indian Evidence Act. Their admissibility rests on the principle that a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath -- 'Nemomorturus prasumitur mentire'. The general principle on which these species of evidence are admitted is that they are declarations made in extremity, when the maker is at a point of death and when every hope of this world is gone and when even motive to falsehood is silenced, and the mind induced by the most powerful considerations to speak the truth a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by positive oath administered in a Court.
The principles that have to be kept in mind while considering the dying declaration have been clearly adumbrated by Supreme Court in a decision reported as long back as in Khushal Rao v. State of Bombay. and they are as follows :
1) It cannot be laid down as an absolute rule of law that a dying declaration cannot from the sole basis of conviction unless it is corroborated:
2) Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;
3) It cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence;
4) A dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;
5) A dying declaration, which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and
6) In order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control, that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earlier no opportunity and was not the result of tutoring by interested parties".
The ratio laid down in Kushal Rao's case have been followed subsequently in a catena of decisions including R.B. Yadav v. State of Bihar, . In Dandu Lakshmi Reddy v. State of A.P., , the Supreme Court has categorically stated that where a conviction is based solely on a dying declaration, the Court has to carefully consider the statements of witnesses supporting it namely the Magistrate who recorded the statement of and the Medical Officer who examined the injured person.
5A. This is a case where P.W. 9 the Judicial First Class Magistrate, Special Mobile Court, Khammam, proceeded to the Government Hospital, on receipt of a requisition on 24-11-1994 at 10.00 pm. to record the dying declaration of the deceased by name Khader Bee, who was admitted with burn injuries. Thereafter, he had commenced recording of dying declaration of Khader Been in the presence of Smt. Dr. Kamala, the Medical Officer. P.W.9 stated that he has put the questions to the deponent, and after having been satisfied with the fit condition of the deponent and conscious state of mind to make declaration, he recorded the statement in the presence of the Doctor. Ex.P-10 is the dying declaration. The Doctor has also made an endorsement at that place stating that the patient was conscious and coherent and if to make declaration. Thereafter only the Magistrate has put the question How it happened and when? Then the deponent Shaik Khader Bee stated that all these quarrel were regarding her brother's daughter. This happened in the evening i.e.. just how unable to bear anger her sister threw a lighted lamp. Her elder sister's name is Noorjahan. They have performed the marriage of her brother's daughter. She refused to go to her mother-in-laws house. For that her sister due to anger done like this. She burned with a lighted lamp. At that time all were present. When it happened her mother, father, elder brother, elder sister, brother-in-laws and all were present. This happened in their house. Again beneath the declaration, the Magistrate has made an endorsement. It is mentioned in the said declaration that her sister Noorjahan threw the lighted lamp on the deceased and caused burn injuries.
6. It is mainly contended by the counsel appearing on behalf of the appellant that the learned Sessions Judge has not believed the evidence and acquitted A-2 to A-4 and hence the same cannot be read as against A-1. It is also contended by him that it is not safe to convict the accused person on the uncorroborated testimony of Dying Declaration is not correct is that there is discrepancy regarding the place of offence that took place, namely, whether it took place in the house or near the pan shop or in the verandah. It is his further contention that there is no previous enmity and there is no motive for the accused and the alleged offence under Section 304-II, IPC against A-1 is not correct. The learned Public Prosecutor contends that the dying declaration can form the sole basis to arrive at the finding of guilt of a person. It is also contended that the dying declaration recorded by the Magistrate is truthful one and there is no need to discard the same.
7. The question that has to be considered at this stage is whether the dying declaration recorded by the Magistrate is truthful and can be acted upon. It is mentioned in the dying declaration that the incident took place in their house. It appears that the place of incident is a hotel-cum-house. The mother, father, elder brother, elder sister, and brother-in-law and all of them are said to be present at the time of incident. But they did not support the prosecution case. In this case, the Head Constable (P.W. 10) recorded a statement of the deceased under Ex.P. 11 and the same was recorded at 23.00 hours on 22-11-1994. The Magistrate has recorded the dying declaration at about 20. 8 hours. It is to be seen whether it is a result of tutoring and whether there is consistency in the version given out by the deceased. The deceased has given consistent version to the Magistrate as well as to the Head Constable. She has categorically stated that her sister threw lighted lamp due to which she caught fire and sustained burn injuries. Hence, it can be said that there is consistency in the version given out in the first dying declaration recorded by the Magistrate as well as in the statement recorded by P.W. 10 the Head Constable, which amounted to Dying Declaration. It is settled law that the dying declaration recorded by the Magistrate has to be given weight than the dying declaration recorded by the police official. Unfortunately, the prosecutors are not conducting the cases properly. The Dying Declaration is said to have recorded in the presence of the Medical Officer, Dr. Kamala. She has made an endorsement on the dying declaration but she has not been examined. However, the learned Magistrate recorded his own satisfaction of conscious and fit condition of the deponent to give declaration on the dying declaration. Only after being satisfied that the deceased is in fit condition, the dying declaration has been recorded by the Magistrate. It is also settled law that non-examination of Doctor who made the endorsement on the dying declaration is not fatal to the prosecution, if the Magistrate is satisfied that the deponent is in fit condition to make declaration. It appears that she has survived for two days. I am convicted with the reliable evidence of P.W. 9 who is an independent witness, namely, the Judicial Magistrate of 1 class, Special Mobile Court, Kammam, who recorded the dying declaration and about the endorsement made by him regarding the fit condition of the deponent, in view of the consistent version given out by the deponent in the statement recorded by P.W. 10 the Head Constable. Insofar as the death is concerned, P.W. 5 sent death intimation under Ex.P-5 to the Police. P.W. 8 Dr.K. Satyanarayana Reddy, conducted post mortem examination on the dead body of the deceased, and found superficial burns all over upper part of body, and upper limbs. Rigor mortis was present on all the four limbs. He also found superficial burns over face, chest abdomen, upper half of both eye, upper half of the back and upper limbs completely. He did not find any burns on the had (sic) lower back, buttocks and lower legs. On internal examination, he found brain was congested. Lungs were also congested. The right heart was filled with blood while left side of the heart was empty. He opined that the death of the deceased was due to shock and haemorrhage as a result of superficial burns., 24 to 36 hours prior to his post mortem examination. These burns are sufficient to cause death of person in the ordinary course. He has issued Ex.P-8 post mortem certificate. Hence, this Court has no hesitation to find that Shaik Khader Bee died due to burns. Now the question that falls for consideration is who caused the burns which led to her death. The evidence of P.W. 9 is reliable and trustworthy. I also find that there is consistency in the version given by the deceased in the dying declaration recorded by the Magistrate as well as in the statement recorded by P.W. 10, the Head Constable. Hence, I am of considered view that the dying declaration is a truthful one and it is reliable one and it is not a result of any tutoring since there is consistent version given out to the Magistrate as well as to the Head Constable. The circumstances pointed out by the accused counsel regarding discrepancy with regard to the actual place where the incident took place cannot in any way show that the dying declaration is affected by the same, since she has categorically stated that her sister threw the lighted lamp and caused burns, The injured is the best person to speak about name the person who caused the injuries and she has spoken to the same. There is also motive for her to attribute it to the accused. What is canvassed by the counsel appearing for the appellant is that in a fit of anger she might have thrown the lighted lamp and there is no intention to commit the offence. I respectfully disagree with the said contention. If a person has no intention to cause death and has no knowledge that it is likely to cause the death by doing a particular act, the offence falls under Section 304-II IPC only and the when death being accidently, it can be said that no offence has been made out. This is a case of throwing the lighted lamp in a fit of anger over the deceased and that may be ground for taking leniency and not for holding that no offence has been made out. Unforutnately, it has become a routine matter to close the evidence of Investigating Officers who filed the charge-sheet not knowing the consequences that follow. It is a case where the FIR is registered under Section 304 -II, IPC by means of alteration memo but the investigating officer after applying his mind laid charge-sheet for the offence under Section 302, r/w 34, IPC. When the FIR registered under Section 304-II, IPC it is not known why the Circle Inspector laid the charge-sheet for the offence under Section 302 r/ w 34, IPC. In any view of the matter, non-examination of Circle Inspector does not in any wa affect the trial in this case as it does not cause prejudice to the accused. It is for the Registry to give necessary instructions through out the State not to close unnecessary the evidence of investigating Officers, when the case is being contested, lest, it may lead to his miscarriage of justice.
8. To sum up, I find that the dying declaration recorded by P.W. 9 is truthful and reliable and it is not a result of any tutoring. At the time of recording dying declaration she is found to be in conscious state and she has stated in the dying declaration that the 1st accused alone has caused the burn injuries which lead to death. The prosecution has proved the case beyond all reasonable doubt for the offence under Section 304-II, IPC. The learned Sessions Judge has rightly come to the conclusion that the offence falls under Section 304-II, IPC and awarded a sentence to five years R.I. against A-1 after taking into consideration of all the circumstances. For the foregoing reasons, I hold that there is no need to interfere with the finding of fact arrived or the sentence awarded by the learned Sessions Judge against A-1 and the same is liable to be confirmed.
9. In the result, the conviction and sentence of R. I. for five years, awarded by the learned Sessions Judge, Khammam, in S.C. No. 142 of 1995 against A-1 is confirmed. This Criminal Appeal is dismissed accordingly.