HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH WEDNESDAY, THE ELEVENTH DAY OF JUNE TWO THOUSAND AND FOURTEEN PRESENT THE HONOURABLE SRI JUSTICE G.CHANDRAIAH AND THE HONOURABLE SRI JUSTICE M.S.K. JAISWAL
Criminal Appeal No.456 of 2010
Between:
Lakavath Mangu And The State of A.P., Rep.by Public Prosecutor, High Court of A.P.
… Appellant/Accused … Respondent/Complainant THE HONOURABLE SRI JUSTICE G.CHANDRAIAH AND THE HONOURABLE SRI JUSTICE M.S.K. JAISWAL
Criminal Appeal No.456 of 2010
JUDGMENT: (Per the Hon’ble GC, J)
This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is preferred by the sole appellant – accused against the judgment dated 08.02.2010 in S.C. No.321 of 2009 passed by the learned III Additional Sessions Judge (FTC) Khammam, whereby and whereunder, the appellant was convicted under Section 235(2) Cr.P.C. for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, “IPC”) and sentenced him to undergo imprisonment for life and shall pay fine of Rs.1,000/- (Rupees one thousand only) and in default to undergo simple imprisonment for a period of one month.
2. The brief facts of the prosecution case that are necessary for disposal of this appeal may be stated as follows:
a) The appellant-accused and the deceased are the brother and sister, respectively, and belong to Tribe-Lambada.
b) On 09.02.2008 at 13:00 hours, the de facto complainant, Banoth Bikku, P.W.l, husband of the deceased, came to the Police Station and lodged a report stating that on 09.02.2008 at about 07:30 hours his brother-in-law Lakavath Mangu, appellant-accused, who is none other than the younger brother of the deceased, quarrelled with his wife Banoth Bhadri-deceased, challenged that he is going to kill the deceased, poured Kerosene on her, which was brought in a plastic tin along with him, and set ablaze her, though the de facto complainant asked not to do so. When deceased burning with flames, de facto complainant and one Keloth Bikku, P.W.2, extinguished the flames and shifted the deceased to Government Area Hospital, Kothagudem for treatment. It is also stated that while P.W.1 was trying to extinguish the flames, he too received burning injuries on his left leg.
On receipt of the report, the Station House Officer, L.W.17, registered Crime No.19 of 2008 under Section 307 IPC and took up the investigation.
c) During the course of investigation, L.W.17, visited the Government Area Hospital, Kothagudem, examined the de facto complainant and his wife L.W.2, recorded their statements and sent a requisition to the in-charge II Additional Judicial Magistrate of First Class, Kothagudem with a request to record the Dying Declaration of the victim. Accordingly, the learned Magistrate, L.W.14, recorded the Dying Declaration of the victim. Further, L.W.17 visited the scene of offence, secured the presence of witnesses L.Ws.3 to 8, recorded their statements, drafted the scene of offence, seized the red colour 5 liters plastic tin, an iron bucket and piece of burned blouse of the victim woman, and incorporated the same in Crime Details Form, before the mediators L.Ws.10 and 11. While so, on 28.02.2008 at 10:00 hours the victim succumbed to burn injuries at her house at Takyathanda and on the same day the accused was arrested and sent for judicial remand. On receipt of the death intimation of the deceased, the Section of law was altered from 307 to 302 IPC.
d) During the course of investigation, the Inspector of Police, L.W.18, took up investigation, visited the scene of offence, secured the presence of witnesses L.Ws.1 to 9, recorded their statements, conducted inquest over the dead body of the deceased, before the mediators L.Ws.10 and 11, and sent a requisition to Superintendent, Government Area Hospital, Kothagudem to depute a Doctor to conduct spot Post Mortem examination as the dead body of the deceased was unable to shift as it was charred. Accordingly, the Medical Officer, L.W.15, visited the spot and conducted post mortem examination over the dead body of the deceased and issued Post Mortem Examination Report. The learned Magistrate, L.W.16, recorded Section 164 Cr.P.C. statements of L.Ws.1 and 2.
e) After receiving relevant information, and on completion of the investigation, the Police filed charge sheet against the appellant-accused for the offence punishable under Section 302 IPC and the trial Court took the cognizance of the same in S.C. No.321 of 2009, wherein a charge under Section 302 IPC against the appellant-accused was framed, read over and explained to him in Telugu, for which, he pleaded not guilty and claimed to be tried.
3. To substantiate the charges, the prosecution examined P.Ws.1 to 16 and got marked Exs.P-1 to P-23, besides taking on the file the case property as M.Os.1 to 3.
4. After closure of the prosecution evidence, appellant-accused was examined under Section 313 Cr.P.C., and he denied the incriminating material evidence found against him, and further stated that he did not commit any offence and reported no evidence.
5. Considering the evidence on record, the trial Court found the accused guilty of the offence punishable under Section 302 IPC, convicted and sentenced him to undergo imprisonment of life and pay fine of Rs.1,000/- (Rupees one thousand only), and in default, to undergo simple imprisonment for a period of one month. Challenging the said conviction and sentence, the appellant-accused, preferred this appeal.
6. The learned counsel appearing for the appellant-accused contended that there is absolutely no motive for accused to commit murder of the deceased. He further contended that there are two Investigation Officers in the present case i.e. P.Ws.14 and 16. In the statement of P.W.14, it is mentioned that the statement of the P.W.1 was recorded but no such record is made available. Therefore, in view of the provisions of Section 114 (g) of the Indian Evidence Act, a presumption can be drawn for giving benefit of doubt in favour of the appellant-accused. Therefore, it can be said that the prosecution has failed to prove the charges levelled against the appellant- accused.
Secondly, the medical evidence adduced by the prosecution has not supported the statement of the deceased.
Thirdly, having regard to the nature of the injuries received by the deceased, at the most, it may constitute an offence punishable under Sections 324 and 336 IPC but not under Section 302 IPC.
Fourthly, the dying Declaration recorded by the learned Magistrate in the presence of a duty medical officer, whose name has not been mentioned. Therefore, non-mentioning of the name of the duty medical officer is fatal to the case of the prosecution. Therefore, the dying declaration need not be relied upon. Further, whole case depends upon the reliability and trustworthiness of the dying declaration, Ex.P.18, recorded by P.W.13, Special Judicial II Class Magistrate. According to Ex.P.20, Post Mortem Examination Report, and the statement of P.W.15, Dr.N.Bharavi, the mouth, teeth, tongue and pharynx of the deceased are congested and therefore, the deceased was not in a position to speak. When the deceased was not in a position to speak, the question of giving dying declaration does not arise. Therefore, there is no justification on the part of the learned trial Court in convicting the appellant-accused for the charge levelled against him punishable under Section 302 IPC, and therefore, the same is liable to be set aside and the appellant-accused may be acquitted.
7) On the other hand, the learned Additional Public Prosecutor contended that P.Ws.1 to 6 and P.Ws.8 to 12 did not support the case of the prosecution. The prosecution relied upon the dying declaration of the deceased, Ex.P-18. It is further contended that no statement of P.W.1 was recorded by the P.W.14 and assuming for a moment that the statement of P.W.1 was recorded, since P.W.1 turned hostile, his statement is of no use in considering the case. Further, the incident was occurred on 09.02.2008, and on the same day P.W.13, Magistrate, received a requisition from P.S. Julurpadu to record dying declaration of the deceased and before recording the dying declaration, he identified the patient with the help of duty medical officer and obtained certificate regarding fit state of mind of the patient to give statement and put some preliminary questions to satisfy himself regarding the fit condition of the patient to give the statement and after satisfying with the same, P.W.13 recorded the dying declaration of the deceased wherein the deceased stated that “Today i.e. on 9-2-08 at about 8 A.M. while I was sitting in front of my house, my brother came to me along with kerosene tin, and poured on me and lit fire, due to which my body was burn i.e. Face, back side, chest, ears and stomach.”
8. Subsequently, the deceased died on 28.02.2008, after staying in the hospital for about 14 days and on the same day i.e. 28.02.2008 post mortem was conducted over the dead body by P.W.15, who issued Ex.P-20, Post Mortem Examination Report, according to which, the approximate time of death is 20 hours before post mortem examination, and the cause of death is Cardio-respiratory arrest due to septicemic shock due to 95% mixed degree burns. He submits that the Post Mortem Examination Report corroborates with the dying declaration, which has become basis for the trial Court to convict the appellant-accused for the offence punishable under Section 302 IPC.
9) Eventually, when the learned counsel for the appellant-accused submitted that the appellant-accused was neither having motive nor intention to kill the deceased for which, the learned Additional Public Prosecutor agreed for the same. Further, the learned counsel for the appellant-accused submitted that the deceased is having three female children and after her death, her husband deserted his children and remarried. Now, the wife of the accused-appellant is looking after her three children, along with their two children, and it has become burdensome for her to manage the family without her husband, appellant-accused. Therefore, he submitted that taking into consideration the facts and circumstances of the case, some lenient view may be taken in the present case and the impugned judgment may be set aside by modifying the offence punishable under Section 304 Part-II IPC.
10) Now the point to be considered is whether there is any legal infirmity in the impugned judgment to interfere with the same, and if so, what is the relief?
11) It is not in dispute that the appellant-accused and the deceased are the own brother and sister, respectively. From a perusal of the record, it reveals that the appellant-accused suspected the character of the deceased and with an intention to teach a lesson to her, and not to continue the alleged activity of illicit relationship, he brought kerosene in a tin and poured on her and lit the fire. Consequently, she received burn injuries and was admitted in the hospital on 09.02.2008, and after some days she was shifted to the residence, where she succumbed to burn injuries. All the material witnesses, except P.W.7, turned hostile. Therefore, the learned trial Court, based on the statement of dying declaration, Ex.P.18, recorded by the learned Magistrate, P.W.13, taking corroboration from the Post Mortem Examination Report, P.20, which was issued by Doctor, P.W.15, imposed the punishment on the appellant-accused for the offence punishable under Section 302 IPC.
12) Various contentions were raised by the learned counsel for the appellant-accused that to place reliance on the dying declaration, Ex.P.18, which is not trustworthy for the reason that the duty doctor’s name was not mentioned in the FIR and was not examined. Deceased belongs to a Tribal Community and she knows only tribal language and it is not known that while recording the dying declaration whether she was put to questions in the tribal language or not. Therefore, the alleged statement given by the deceased is not trustworthy and therefore, dying declaration alone cannot be taken into consideration to convict the appellant-accused, for the offence punishable under Section 302 IPC. Therefore, the impugned judgment is liable to be set aside. In support of his contention, the learned counsel placed reliance in
[1]
NALLAPATI SIVAIAH v. SUB-DIVISIONAL OFFICER, GUNTUR, A.P. , which reads as under:
“It is the duty of the prosecution to establish the charge against the accused beyond reasonable doubt. The benefit of doubt must always go in favour of the accused.
It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. The evidence of Professor of Forensic Medicine casts considerable doubt as regards the condition of the deceased to make a voluntary and truthful statement.
It is for that reason non-examination of Dr.
T. Narasimharao, Casualty Medical Officer, who was said to have been present at the time of recording of both the Dying Declarations attains some significance. It is not because it is the requirement in law that the doctor who certified about the condition of the victim to make a Dying Declaration is required to be examined in every case.
But it was the obligation of the prosecution to lead corroborative evidence available in the peculiar circumstances of the case.”
13) In the said case the deceased received multiple injuries and it is a case of murder. There were two dying declarations one is by the Police Officer and the another is by the learned Magistrate. The doctor, who was present at the time of recording the dying declarations, was not examined. There were conflicts and inconsistencies in two dying declarations. In those peculiar circumstances it was held that it is not because it is the requirement in law that the doctor who certified about the condition of the victim to make a dying declaration is required to be examined in every case. But it was the obligation of the prosecution to lead corroborative evidence available in the peculiar circumstances of the case. Such a situation does not exist in the present case.
14) In the present case, the deceased was admitted in the hospital on 19.02.2008 and on the very same day, on receipt of the requisition, the learned Magistrate went to the hospital and after due certification of the duty doctor to the effect that the patient is in fit state of mind to give the statement, and after putting as many as 11 questions and up to 10 questions relating to the condition of the patient by virtue of which the learned Magistrate noticed that the deceased was in a position to give statement and accordingly the statement of the deceased was recorded wherein the deceased categorically stated that on 09.02.2008 her brother Mangu brought one Kerosene-oil can and poured kerosene on her and lit fire with the match stick, whereby she sustained burnt injuries to her body i.e. on her face, backside, front side, hands and on stomach, which is corroborated with the evidence of the doctor, P.W.15, who conducted the Post Mortem.
15) In view of the above, we are of the view that the trial Court did not commit any mistake in relying on the dying declaration of the deceased, which was recorded by the learned Magistrate, P.W.13.
The trial Court convicted the appellant-accused for the offence punishable under Section 302 IPC and sentenced him to suffer imprisonment for life and to pay a fine of Rs.1,000/- with a default clause to undergo one month simple imprisonment. However, we are inclined to take few facts and circumstances of the case into consideration that the appellant-accused on coming to know that the deceased was having some illicit intimacy with some third person and with an intention not to continue the alleged illicit intimacy by his sister and to teach a lesson to her, in an angry mood, he brought the kerosene and poured on her and set her ablaze, which resulted in the death of the deceased. Here, it is pertinent to note that the appellant-accused was not having motive or intention to kill the deceased, but in the interest of family reputation he committed the said offence. Taking into consideration these facts, we find the appellant-accused guilty for the offence punishable under Section 304 Part-II IPC.
16) Accordingly, the conviction and sentence recorded by the learned III Additional Sessions Judge, (FTC), Khammam, in S.C.No.321 of 2009 vide judgment dated 08.02.2010 against the appellant–accused for the offence punishable under Section 302 IPC is set aside.
The appellant–accused is found guilty of the offence punishable under Section 304 Part-II IPC, accordingly convicted and sentenced to undergo imprisonment for a period of five (05) years.
17) The period of remand underwent by the appellant–accused, during investigation, trial and after conviction, shall be given set off under Section 428 Cr.P.C.
18) Accordingly, Criminal Appeal is partly allowed to the extent indicated above.
JUSTICE G.CHANDRAIAH JUSTICE M.S.K. JAISWAL Date: 11.06.2014 LSK
[1] AIR 2008 SUPREME COURT 19