Telangana High Court
Yepuri Thirapathaiah , Thirapaiah, ... vs P.P., Hyd on 5 November, 2024
HON'BLE SRI JUSTICE K.SURENDER
And
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
CRIMINAL APPEAL No.729 OF 2015
JUDGMENT:(per Hon'ble Sri Justice K.Surender)
1. The appellant/accused was convicted for the offence under Section 302 IPC and sentenced to life imprisonment vide judgment in S.C.No.133 of 2012 dated 26.02.2015 passed by the VIII Additional District and Sessions Judge, at Miryalguda. Questioning the said conviction, present appeal is filed.
2. P.W.1, resident of Ramapuram, has five daughters, including Kalavathi and Nagalaxmi (herein after referred as D1). Two years prior to 2011, the appellant, Kalavathi, and some relatives went to Marrigudem, the village of Malleshwar Rao (hereinafter referred as D2, who is the husband of D1), to discuss marriage proposal for D1. However, since D2 was still studying, it was agreed that the marriage would take place at a later date. Since then, D2 has been visiting D1 and her family. Kalavathi is the wife of appellant.
3. In March/April 2011, Kalavathi travelled to Marrigudem to work as a labourer, cutting paddy fields, and stayed there for a 2 month. Upon her return, the appellant began suspecting that Kalavathi and D2 had engaged in an illicit affair during her stay in Marrigudem. As a result, he physically abused Kalavathi, prompting her to leave him and move back to her parents' home. She has been staying at her parents' place 3-4 months prior to the incident.
4. During this period, D1 and D2 got married. The appellant attempted to reconcile with Kalavathi, but when she refused to return, he was convinced that she and D2 were having an affair, and D1 was cooperating in their relationship.
5. On 14.8.2011, D1 and D2 travelled on D2's bike to Ramapuram to attend Mutyalamma festival. The following day, on 15.8.2011, the appellant also arrived there. Appellant allegedly brought a knife with him, which was seen by his mother-in-law, PW1, who showed the same to the village elders.
6. On the night of 15.8.2011, D1 and D2 were sleeping outside on cots in front of their house, while PW1 slept on a cot some distance away. It is alleged that the appellant took petrol from D2's bike, poured it over D1 and D2, set them on fire, and fled. D1 and D2 woke up in agony, seeing the appellant running away. P.W.1 3 witnessed the appellant pouring petrol on D1 and D2 and setting them on fire. They were shifted to Teja Nursing Home, Kodad of Dr R.B Raju. D1 succumbed to her injuries the following morning after her dying declaration was recorded by P.W.22. P.W.22 also recorded statement of D2. D2 was then shifted to Mamatha Hospital, Khammam and from there, he was shifted to Govt hospital, Vijayawada, and while undergoing treatment D2 passed away on 27.8.2011.
7. Learned Sessions Judge examined witnesses P.Ws.1 to 22 and marked Exs.P1 to P.Ws.25. MOs.1 to 7 were also placed on record. During the course of cross-examination of P.Ws.1, 2 and 4, Exs.D1 to D8 were marked which are contradictory portions of their statements given under Section 161 Cr.P.C. Learned Sessions Judge found favour with the prosecution case and accordingly convicted the appellant.
8. Learned counsel appearing on behalf of the appellant would submit that the witnesses P.Ws.5, 6, 9 and 13 turned hostile to the prosecution case. P.Ws.1, 3 and 4 who spoke about the incident are interested witnesses since they are close relatives of D1 and D2. In 4 fact, P.Ws.3 and 4 are not direct witnesses to the incident. P.Ws. 2, 7 and 8 are the witnesses who spoke about their coming to know about the incident through others. The evidence of P.Ws.2, 7 and 8 is hearsay in nature. Learned counsel further argued that according to P.W.19, who is the Sub-Inspector of Police, he received information from unknown person on 16.08.11 at 7.30 a.m that D1 and D2 were burnt and shifted to Teja Nurshing Home. The said information was noted down in the General Dairy and Crime No.129 of 2011 was registered under Section 307 of IPC. P.W.19 admitted that he recorded statement of D2 without obtaining any fitness certificate from the duty Doctor at 6.30 a.m itself and obtained signature in Telugu at Teja Nursing Home. Both the versions are contradictory and the version given by P.W.9 regarding information received cannot be believed.
9. Learned counsel further argued that the Dying Declaration recorded by P.W.22 vide Exs.P23 and P24 cannot be considered since Rule 33 of Criminal Rules of Practice was not followed. Exs.P23 and P24 statements of D1 and D2 were with him for 80 days and there is any amount of doubt regarding correctness of the 5 Dying Declaration Exs.P23 and P24. Though signatures had to be obtained in accordance with the Criminal Rules of Practice, but P.W.22 had obtained thumb impressions of the deceased. Since the case of the prosecution is that D1 received almost 100% burn injuries, her statement made to P.W.22 is also doubtful. The Dying Declaration is result of tutoring by P.W.1.
10. Learned counsel relied on the judgment reported in the case of Uttam v. State of Maharashtra 1, wherein the Hon'ble Supreme Court discussed the effect of Dying Declaration. The following principles are laid down at para 14 of the judgment.
"14. In Paniben v. State of Gujarat [Paniben v. State of Gujarat, (1992) 2 SCC 474 : 1992 SCC (Cri) 403] , on examining the entire conspectus of the law on the principles governing dying declaration, this Court had concluded thus : (SCC pp. 480-81, para 18) "18. ... (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P. [Munnu Raja v. State of M.P., (1976) 3 SCC 104 : 1976 SCC (Cri) 376] )
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav [State of U.P. v. Ram Sagar Yadav, (1985) 1 SCC 552 : 1985 SCC (Cri) 127] ; Ramawati Devi v. State of Bihar [Ramawati Devi v. State of Bihar, (1983) 1 SCC 211 : 1983 SCC (Cri) 169] .)
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor [K. Ramachandra Reddy v. Public Prosecutor, (1976) 3 SCC 618 : 1976 SCC (Cri) 473] .) 1 (2022) 8 Supreme Court Cases 576 6
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P. [Rasheed Beg v. State of M.P., (1974) 4 SCC 264 : 1974 SCC (Cri) 426] )
(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 M.P. [Kake Singh v. State of M.P., 1981 Supp SCC 25 : 1981 SCC (Cri) 645] )
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. [Ram Manorath v. State of U.P., (1981) 2 SCC 654 : 1981 SCC (Cri) 581] )
(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. Krishnamurti Laxmipati Naidu [State of Maharashtra v. Krishnamurti Laxmipati Naidu, 1980 Supp SCC 455 : 1981 SCC (Cri) 364] .)
(viii) Equally, merely because it is a brief statement, it is not to be discarded.
On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Ojha v. State of Bihar [Surajdeo Ojha v. State of Bihar, 1980 Supp SCC 769 : 1979 SCC (Cri) 519] .)
(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 eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanhau Ram v. State of M.P. [Nanhau Ram v. State of M.P., 1988 Supp SCC 152 : 1988 SCC (Cri) 342] )
(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 [State of U.P. v. Madan Mohan, (1989) 3 SCC 390 :
1989 SCC (Cri) 585] .)"
25. The credibility of a dying declaration recorded by the Magistrate has also come up for consideration in several cases and it has been held that a Magistrate being an uninterested witness and a respected officer and there being no circumstances or material to suspect that he would have any animus against the accused or would in any way be interested for fabricating a dying declaration, such a declaration recorded by the Magistrate, ought not be doubted. Absence of corroborative evidence for convicting an accused based on a dying declaration has been a matter of discussion in several cases [Ref. : Munnu Raja [Munnu Raja v. State of M.P., (1976) 3 SCC 104 : 1976 SCC (Cri) 376] , Paniben [Paniben v. State of Gujarat, (1992) 2 SCC 474 : 1992 SCC (Cri) 403] , Ram Sagar Yadav [State of U.P. v. Ram Sagar Yadav, (1985) 1 SCC 552 : 1985 SCC (Cri) 127] , Ramawati Devi [Ramawati Devi v. State of Bihar, (1983) 1 SCC 211 : 1983 SCC (Cri) 169] and Veerpal [State of U.P. v. Veerpal, (2022) 4 SCC 741 : (2022) 2 SCC (Cri) 224] ]."7
11. In Arvind Singh v. State of Bihar 2, the Hon'ble Supreme Court advised caution before accepting Dying Declaration as trustworthy evidence. In Aleti Bixpathi v. State of Andhra Pradesh 3, the Hon'ble Division Bench of this Court while dealing with the case of acquittal found that when the allegation made against the accused that he had committed murder of the deceased was not found in the Dying Declaration of the deceased regarding injuries inflicted by accused therein, acquittal was upheld.
12. Learned Additional Public Prosecutor argued that eye witness P.W.1 had specifically stated that she saw the appellant pouring petrol on D1 and D2 and set them on fire. P.Ws.1 and 4 are eye witness, P.Ws.2 and 3 are circumstantial evidence witnesses and though P.Ws.5 and 6 have turned hostile to the prosecution case, the evidence of other witness can be relied on. The other witnesses were also examined to speak about motive for murder. The motive was that D2 was having an affair with the wife of the appellant and supported by D1.
2 (2001) 6 Supreme Court Cases 407 3 2012 (1) ALD (Crl.) 10 (AP) 8
13. P.W.1 is the mother of D1, stated that on the date of incident when D1 and D2 were sleeping on a cot and she was also sleeping on the cot outside the house. On the same day, prior to going to sleep, the appellant was found in possession of a knife which was kept in the house, and it was shown by P.W.1 to elders. The appellant poured petrol on both D1 and D2 and having lit fire, appellant fled. Neighbours came and put off the flames. During the course of cross-examination nothing which can be considered to go in favour of the appellant was adduced. Ex.D1 and D2 were marked in which P.W.1 stated that D2 was shifted to Mamatha Hospital and the knife brought by the appellant was shown to P.W.2.
14. P.W.4 is the daughter of P.W.1 and sister of D1. According to her, P.W.1 had invited her sister and brothers-in-law including D1 and D2 for celebrating Bonalu festival. The appellant brought knife and kept with him. However, P.W.1 took the knife and showed it to elders by calling them. D1 and D2 were sleeping on one cot in front of the house. The house of P.W.4 is abutting P.W.1's house. Since the daughter of appellant namely Nagamani shouted, P.W.4 woke up and found that the appellant sprinkled petrol on D1 and D2 and 9 set fire. D1 and D2 shouted for help in pain and the flames were put off by covering with gunny bags and both D1 and D2 were shifted to the hospital.
15. In the cross-examination of both P.Ws.1 and 4, minor discrepancies such as not mentioning specifically that flames were put off by gunny bags, nothing was elicited during cross- examination which discredits their seeing the appellant sprinkling petrol and setting D1 and D2 on fire.
16. After D1 and D2 were shifted to the hospital, P.W.22/Tahsildar recorded their statements. At 5.45 a.m, the statement of D1 was recorded and at 6.00 a.m, the statement of D2 was recorded. According to P.W.22, D1 stated that while she and her husband were sleeping on a cot, at her mother's house, the appellant poured some liquid and set fire to them with match box and escaped. Further, D1 stated that the appellant forced her to satisfy his sexual desire and when she refused, the appellant was jealous with her and her husband. At the time of recording the statement, certification of the duty Doctor was obtained. The statement of D1 is Ex.P23. After completion of the statement of D1, 10 P.W.22 recorded the statement of D2. In his statement, D2 mentioned about the appellant coming with the knife and P.W.1 handing it over to the village elders. While he and his wife were sleeping on a cot outside the house of P.W.1, the appellant sprinkled petrol and set fire to them and D2 found the appellant escaping. The appellant also suspected that there was illegal intimacy between D2 and his wife. Further, D1 and D2 were living together but the appellant and his wife are not living together. After recoding the statement of D2 also, the Doctor certified that he was in a fit state of mind. It was suggested to P.W.22 that on account of tutoring by the relatives of the deceased, the statements under Exs.P23 and 24 were given by D1 and D2.
17. The main argument of the learned counsel for the appellant is that the said statements of D1 and D2 were sent to the Magistrate with a delay of nearly 80 days that in itself would cast any amount of doubt regarding the correctness of the statements made under Exs.P23 and P24 of D1 and D2.
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18. In the present case, the Dying Declarations are not only basis on which prosecution relies on prove the guilt of the appellant. P.Ws.1 and 4, who are the mother and sister of D1 have stated about witnessing the appellant sprinkling petrol on D1 and D2 and setting them on fire. D1 stated in her statement stated that the appellant was jealous of her and angry for not satisfying his lust. D2 stated that the appellant suspected him of having an affair with his wife. The said motive and grudge by the appellant were spoken to by P.W.1/mother and P.W.4/sister of D1.
19. The statements of P.Ws.1 and P.W.4 cannot be brushed aside or disbelieved only for the reason of the relation with the deceased. In fact, the appellant is also related to P.W.1 as son-in-law and P.W.4 as brother-in-law.
20. Though the Dying Declarations Exs.P23 ad P24 recorded by P.W.22 were sent with delay to the concerned Magistrate, however, the statements made by the deceased is not the only evidence that is available on record. The statements made by D1 and D2 can be considered as corroboration to the evidence of P.Ws.1 and 4. 12
21. There are no reasons to interfere with the finding of guilt of the appellant and the same is liable to be dismissed.
22. Accordingly, Criminal Appeal is dismissed. Since the appellant is on bail, the trial Court is directed to issue summons to the appellant and send him to prison to serve out the remaining period of sentence.
__________________ K.SURENDER, J _________________________________ ANIL KUMAR JUKANTI, J Date : 05.11.2024 kvs