HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Between:
Criminal Appeal No.385 of 2010 Dated: 22.04.2014 Rayapudi Sreenu … Appellant And State of Andhra Pradesh, Represented by PP. High Court, Hyderabad.
… Respondent HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No.385 of 2010 JUDGMENT: (Per Hon’ble Sri Justice M.S.K.Jaiswal) The appellant was accused of having caused the death of Orsu Sreedevi (hereinafter referred to as ‘the deceased’) by setting her fire on the intervening night of 14/15-06-2009 at her house situated at B.C.Colony, Shantinagar, Khammam. He was tried for the said offence, which is punishable under Section 302 I.P.C., in S.C.No.430 of 2009 on the file of the I-Additional Sessions Judge, Khammam. Through Judgment, dated 12-01- 2010, the trial Court sentenced the accused to undergo imprisonment for life and to pay fine of Rs.1,000/-, in default, simple imprisonment for one month.
2. The case of the prosecution, as presented in the trial Court, is as under:-
The deceased was originally married to one Subba Rao, who died, and thereafter, she shifted to Shanti Nagar. The accused developed illegal contacts with her and was insisting that the deceased should marry him. Since the deceased had two daughters, she was opposing the marriage proposal.
It is alleged that in the intervening night of 14/15-06-2009, at about 00.30 hours, the accused came to the house of the deceased, behaved indecently with her and when she raised cries, the accused poured kerosene on her, set fire and escaped from there. The deceased ran out of the house with flames, which were extinguished by neighbours. The deceased was shifted to Government Hospital, Khammam. While she was undergoing treatment, her statement was recorded by the jurisdictional Magistrate. The information was received by Thirumalakonda Gurunadha Rao, the brother of the deceased, and he went to the hospital and thereafter he lodged the complaint with P.S.Konijerla.
F.I.R. was registered as Cr.No.89 of 2009 under Section 307 I.P.C. Scene of offence panchanama was conducted and photographs were taken. The statements of the witnesses were recorded.
On 17-06-2009 at about 07.45 a.m., in the morning, the victim succumbed to the burn injuries. Provision of law was altered from 307 I.P.C., to 302 I.P.C., and further investigation was taken up by the C.I. of Police. On 22-06-2009, the accused was arrested and he confessed of having committed the crime. The cause of death, as per the post-mortem report, was the septic shock secondary to 90% burns. The prosecution pleaded that the accused committed the offence and hence the charge-sheet was filed.
Cognizance was taken and the case was made over to the I-Additional Sessions Judge, Khammam. Charge under Section 302 I.P.C. was framed and the accused denied, whereupon trial was taken up. On behalf of the prosecution, PWs.1 to 19 were examined, Exs.P.1 to P.19 were filed and M.Os.1 to 4 were taken on record. The accused denied the evidence on record.
On being found guilty and sentenced by the trial Court as stated above, the accused preferred the appeal.
3. The contention of Smt.A.Gayatri Reddy, the learned Counsel for the accused is that except for the Dying Declaration, there is absolutely no evidence, whatsoever, for concluding that the accused committed the crime. It is argued that the Dying Declaration is not reliable and the trial Court ought not to have based its findings on it. She further submits that even the neighbouring residents have turned hostile and that the conviction of the accused cannot be sustained.
4. Learned Additional Public Prosecutor, on the other hand, submits that it is an unfortunate case where all the witnesses, including the relations of the deceased have turned hostile, obviously because they have been won over. She submits that immediately after the incident, the jurisdictional Magistrate PW.16 recorded the dying declaration by following the prescribed procedure and in the dying declaration, the victim has clearly stated that it is the accused who set fire to her and there are no grounds to disbelieve the dying declaration. She further submits that even in the absence of any corroboration, conviction of the accused can be sustained on the solitary dying declaration. Learned A.P.P. further submits that the incident took place in the mid-night, in the house of the deceased, and that eye-witnesses cannot be expected in such cases. She further submits that the finding of the trial Court, based on dying declaration is valid and the appeal is liable to be dismissed.
5. The point for consideration is as to whether the prosecution proved its case against the accused beyond reasonable doubt, so as to sustain the conviction and sentence, or, whether it needs to be set aside or modified?
6. Point:- The deceased Sreedevi, having lost her husband was eking out her livelihood by doing coolie work and was maintaining two teenaged daughters, one of whom is examined as PW.7. The accused was doing business in bricks. The deceased and the accused developed illicit intimacy. Wisdom prevailed upon the deceased and she started maintaining distance from the accused considering the future of her daughters. It is alleged that the accused was insisting the deceased to marry him but that was being spurned by the deceased, on the same ground. The fact that the deceased met with unnatural death on 17-06-2009, on sustaining burn injuries on the intervening night of 14/15-06-2009, is not disputed. According to the prosecution, the accused poured kerosene on the deceased and set fire to her. This is denied by the accused. The prosecution examined the brother of the deceased as PW.1, the neighbours and other relatives of the deceased as PWs.2 to 9. Unfortunately, all of them turned hostile and denied knowledge or having witnessed the accused causing death of the deceased. The brother, the elder sister, one of the two daughters, and mother of the deceased, and the neighbouring residents resiled from their previous statements, which are marked as Ex.P.1 to Ex.P.9.
7. However, even though all the material witnesses turned hostile, there is the dying declaration, recorded by the jurisdictional Magistrate PW.16, from the deceased before she succumbed to the injuries.
8. There is a catena of authorities to the effect that the conviction of an accused can be based solely on the Dying Declaration, provided that it has been recorded in accordance with the procedure prescribed by law, it inspires confidence of the Court, and is devoid of the influence of any of the external forces.
9. In HEERALAL YADAV v. STATE OF M.P. (2007 (1) ALT (Crl) 260 (SC), in para 6, the Supreme Court made the following observations:-
“The principle that “no man at the point of his death is presumed to lie. A man will not meet his maker with lie in his mouth” is based on sound public policy. No doubt, as the dead man would not be available for cross-examination, a duty is cast upon the Court to examine the Dying Declaration with care and caution as to whether the Dying Declaration is creditworthy for acceptance. In other words, whether it inspires confidence on the basis of which alone conviction can be recorded. Similarly, it is also an accepted principle of law that the Dying Declaration, keeping in view the above principles in mind, if inspiring confidence could be the sole basis for conviction.”
Similar proposition is laid down by the Apex Court in BHAGWAN TUKARAM v. STATE OF MAHARASHTRA (2014 (4) S.C.C, 270).
10. In the instant case, the deceased sustained the burn injuries at the mid-night. She was rushed to the Government Hospital, Khammam. PW.16, the jurisdictional Magistrate, received the requisition to record the dying declaration at about 02.30 A.M. on 15-06-2009. Immediately, she rushed to the hospital and after the victim was identified by the Medical Officer, and after the Medical Officer certified the condition of the patient to be in a position to speak consistently, she has put the preliminary questions, to satisfy herself about the mental ability and capacity of the victim to give the statement, she recorded the statement, marked as Ex.P.18. When asked as to how she sustained the injuries, the victim categorically stated that she lost her husband about eight years back, that she developed illicit intimacy with Rayapudi Sreenu (accused), that in view of the future of her children, she had been maintaining some distance with the accused, that the accused was, however, coming to her regularly and used to beat her, and that on 14-06-2009 at about 11.30 p.m., the accused came to her house, beat her and poured kerosene on her and set her ablaze. To a specific question, as to who is responsible for causing the injuries, the deceased asserted that it is Rayapudi Sreenu (accused), who is responsible for her burn injuries. After the statement was recorded, once again the Medical Officer certified that the patient was conscious and coherent and her faculties are normal through out the proceedings of the dying declaration.
12. Ex.P.18 was recorded at about 03.00 hours on 15-06-2009. After about 52 hours i.e., at about 07.00 a.m., on 17-06-2009, the deceased succumbed to the burn injuries. All these factors cumulatively establish that the statement of the victim recorded by the Magistrate is nothing but a truthful narration of the events that unfolded on the fateful night of 14/15-06-2009. This statement clearly nails the accused as a perpetrator of the crime. Neither any procedural defect nor any factual error is pointed out in the declaration. The evidence of the Magistrate PW.16 and the statement Ex.P.18 are sufficient to hold that the accused guilty of having set fire to the deceased.
13. The next aspect of the matter as to the nature of offence that is committed by the accused. According to the prosecution, the acts of the accused constitute an offence punishable under Section 302 I.P.C. Learned Counsel for the accused submits that, at best, it fits into Section 304 I.P.C. She also submits that even if what the prosecution alleges is true, the accused can be attributed with knowledge that by committing the act, he was likely to cause death but there was no intention in him to cause the death of the deceased. In support of this contention, learned Counsel relied upon a decision of the Division Bench of this Court reported in OGIBOYINA KOTAIAH v. STATE OF A.P. (2007 (1) ALT (Crl.) 260 (D.B.) (A.P.).
14. The facts proved in the instant case are that having developed illicit intimacy, the deceased refused to continue the same with the accused and she was maintaining distance, in the interest of her grown up daughters. This led to an altercation between the accused and the deceased in the mid-night and the accused is said to have taken a kerosene tin from the house of the deceased, poured on her and set fire. No injuries, other than the burn injuries, are found on the deceased. Therefore, the accused cannot be said to have committed the offence attracting punishment under Section 302 I.P.C. However, he is liable to be convicted for the offence punishable under Section 304 Part II of I.P.C., and sentenced therefor. The point is accordingly answered.
15. In the result, the Criminal Appeal is allowed in part. The conviction and sentence ordered in S.C.No.430 of 2009 on the file of the I-Additional Sessions Judge, Khammam, dated 12-01-2010, against the appellant is converted to be the one under Part II of Section 304 I.P.C. We modify the sentence ordered against the appellant by reducing the same to the one of rigorous imprisonment for a period of ten years. The sentence as to fine imposed by the trial Court is confirmed.
L.Narasimha Reddy,J.
M.S.K. Jaiswal,J.
Dt.22.04.2014
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HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No.385 of 2010 (Judgment of the Division Bench delivered by Hon’ble Sri Justice M.S.K.Jaiswal) Dated: 22.04.2014
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