HON'BLE SRI JUSTICE G.CHANDRAIAH & HON’BLE SRI JUSTICE M.S.K. JAISWAL Crl.A. No. 812 of 2009 DATE: 17.10.2014 Between:-
State of A.P. .. Appellant and Madurakula Raj Kumar .. Respondent-
Accused JUDGMENT:- (per Hon’ble Sri Justice M.S.K. Jaiswal) The sole respondent is the accused who was charged with the offences punishable under Sections 498-A and 302 IPC for having caused death of his wife – M. Shyamala by setting her ablaze on 07.02.2005. Through judgment dated 04.02.2008 delivered in Sessions Case No. 359 of 2007, the learned V Additional Metropolitan Sessions Judge (Mahila Court) at Hyderabad, found that the prosecution has not proved the case against the accused beyond all reasonable doubt, and consequently, acquitted him under Section 235(1) Cr.P.C. Being aggrieved by the said judgment, the State has preferred the appeal contending that the acquittal of the accused by the trial Court is erroneous, and that the evidence of the witnesses was not properly appreciated, and in the dying declaration given by the deceased to the Magistrate, the victim has clearly implicated the accused- husband, and hence, the judgment of acquittal be set aside.
Even though the respondent-accused was served with notice, no representation is made on his behalf.
We have heard the learned Additional Public Prosecutor appearing for the appellant-State and perused the material placed on record.
Now, the point for consideration is whether the prosecution has proved its case against the accused beyond reasonable doubt so as to interfere with the finding of the acquittal?
The deceased – M.Shyamala was working as Staff Nurse in Care Hospital and she was married to the respondent-accused. The allegation is that the respondent-accused was a vagabond and addicted to heavy drinking and used to ill-treat the deceased demanding money from her as well as from her parents. It is also alleged that on the date of the incident, the accused-husband subjected the deceased to harassment and unable to bear the same, she committed suicide. However, subsequently, when the statement from the victim came to be recorded by the jurisdictional Magistrate, she alleged that it is her husband who set fire to her.
In order to prove the case of the prosecution, PWs.1 to 15 were examined and Exs.P1 to P13 and M.Os.1 to 3 were marked and on behalf of the defence, no evidence was adduced.
As noticed above, the incident took place on 07.02.2005 and the deceased succumbed to injuries 43 days thereafter i.e. on 21.03.2005. There are no eye-
witnesses to the incident. Admittedly, the case revolves round two statements recorded from the victim, one by the Sub-Inspector of Police – PW11 and the other by the Magistrate – PW14. The statement recorded by PW11 is marked as Ex.P1 whereas the statement recorded by PW14 is marked as Ex.P13 and there is no quarrel on the proposition that the conviction can be based on the dying declaration itself provided the same is consistent, cogent, reliable, trustworthy and inspires confidence of the Court. If there are more than one dying declaration and if there are material inconsistencies between the two statements, the benefit should thereof invariably ennure to the accused. However, minor inconsistencies and discrepancies can be ignored so long as they do not go to the root of the matter. In the instant case, we have perused the oral evidence of PW11 who recorded Ex.P1 – statement under Section 161 Cr.P.C. and that of the jurisdictional Magistrate – PW14 who recorded Ex.P13. In the statement recorded at the earliest point of time by the Police Officer, the victim – wife has categorically stated that it is she who herself, unable to bear the consistent harassment meted out by her husband, poured kerosene on her and set fire. However, when it came to the dying declaration recorded by the Magistrate, she attributed the said fire incident to her accused-husband. The learned trial Judge has taken into consideration this aspect and also the other oral and documentary evidence and has come to the conclusion that the evidence on record does not clinchingly establishes the guilt of the accused beyond reasonable doubt and consequently extended him the benefit thereof. Upon re-appreciation of material evidence on record, we find that the findings arrived at by the trial Court are based on proper appreciation of evidence and they do not warrant interference by this Court. There are no merits in this appeal, and the same is liable to be dismissed.
Accordingly, the Criminal Appeal is dismissed.
G. CHANDRAIAH, J 17.10.2014 M.S.K. JAISWAL, J bcj