Judgment:
THE HONOURABLE Sr.JUSTICE L.NARASIMHA REDDY AND THE HONOURABLE Sr.JUSTICE M.S.K.JAISWAL CRIMINAL APPEAL No.1373 of 2010 12-02-2014 Konda Ashok & others...Appellants State of A.P.rep.
by Public Prosecutor, High Court, Hyderabad...Respondent Counsel for Appellants: Sr.J.C.Francis Counsel for Respondent: Public Prosecutor HEAD NOTE: ?.CITATIONS: THE HON'BLE Sr.JUSTICE L.NARASIMHA REDDY AND THE HON'BLE Sr.JUSTICE M.S.K.JAISWAL CRIMINAL APPEAL No.1373 of 2010 JUDGMENT
: (Per Hon'ble Sr.Justice L.Narasimha Reddy) A-2 is the sister and A-3 is the mother of A-1.
A-1 was married to one Nomi, daughter of PWs.5 & 6.
It is said to be a love marriage.
On 30-08-2009, Nomi suffered serious burn injuries and she was admitted in the Government Hospital at Sanga Reddy.
On finding that the patient needs better treatment, she was shifted to Sai Durga Hospital at Ramchandrapuram.
Later on, her condition was found to be serious.
Therefore, she was shifted to Osmania General Hospital, Hyderabad.
On 04.09.2009, the Station House Officer, P.S.Ramchandrapuram recorded the dying declaration of Nomi.
She stated that the accused poured kerosene on her and she did not see as to who among them has set her on fire.
She further stated that when she came out with the flames, her brother-in-law, PW.1, poured water upon her and doused the fire.
Thereafter, she is said to have been shifted to various Hospitals.
She alleged that the accused were harassing her in various forMs.One hour thereafter, another dying declaration was recorded by the II-Additional Chief Metropolitan Magistrate, Nampally, PW.14.
Almost similar version was presented therein.
Shortly thereafter, the patient succumbed to burn injuries and died.
The father of the deceased, PW.5, submitted a complaint in P.S.Ramchandrapuram (Ex.P1).same as Ex.P12, stating that his daughter died and that he does not know the reason for the death.
Crime No.390 of 2009 was registered by P.S.Ramchandrapuram.
The accused were alleged to have committed the offences punishable under Sections 302, 304-B and 201 IPC.
The formalities of preparing the scene of offence panchanama, inquest and post mortem were completed and investigation was taken up.
The case was committed to the Court of II- Additional Sessions Judge (Fast Track Court) at Sanga Reddy and the Investigating Officer filed the charge sheet therein.
The trial Court framed the relevant charges and taken up the trial.
PWs.1 to 19 were examined and Exs.P1 to P19 were filed.
A kerosene can was marked as M.O.1.
The learned trial Judge convicted the accused for the offence punishable under Section 302 IPC, but acquitted them of the charge under Sections 304-B and 201 IPC.
Sentence of imprisonment for life and fine of Rs.2,000/-, in default to serve simple imprisonment for six months, was imposed on each of the accused.
Hence, this appeal.
Sr.J.C.Francis, learned counsel for the appellants-accused, submits that almost every witness that was examined by the prosecution turned hostile and the trial Court has rested the conviction of the accused only upon the two dying declarations Exs.P11 and P14.
He contends that Exs.P11 and P14 cannot be relied upon, since they were recorded six days after the incident and that the precautions that are stipulated under law, were not taken at all.
He submits that PW.14, the Magistrate who recorded Ex.P11, admitted that neither he has mentioned in it that the person from whom the statement was being recorded was conscious, nor that what was noted down by him was read over to the person.
Learned counsel submits that the serious lapse would have impact upon the very acceptability of Ex.P11.
He further submits that Ex.P14 cannot be relied upon, since it was said to have been recorded by the police official, that too, after the requisition was given to the Magistrate.
The incident occurred on 30.08.2009 at Ramchandrapuram.
The same did not result in filing of a complaint.
It is the case of the prosecution that the injured was shifted to Government Hospital at Sanga Reddy.
Even if there was no complaint from any one, the authorities of the Hospital were supposed to intimate the occurrence to the concerned police station and that ought to have resulted in registration of a crime.
The patient is said to have been shifted to a private Hospital at Ramchandrapuram on finding that the condition was becoming serious.
The private Hospital is in the jurisdiction of the police station, Ramchandrapuram, the place where Nomi is said to have received burn injuries.
Even there, no crime was registered.
The patient is said to have been shifted to Osmania Hospital on 31.08.2009.
She was receiving treatment upto 04.09.2009.
There again no steps were taken to register any crime.
At the stage of giving a requisition for dying declaration also, no crime was registered.
It was only after PW.5 submitted a complaint on 04.09.2009 after the death of his daughter, a crime was registered.
The only source of information for the police to register the crime was Ex.P1.
A perusal of Ex.P1 discloses that PW.5 did not suspect the involvement of anyone, much less that of A-1 to A-3; in the crime.
Assuming that the further investigation into the matter led to the knowledge of involvement of A-1 to A-3, it needs to be seen as to whether the prosecution was successful therein.
The fiRs.witness examined by the prosecution was PW.1, the brother of A-1 and the brother-in-law of the deceased.
Even from Exs.P11 & P14, it is evident that PW.1 is said to have poured water upon the deceased and doused the fire.
The evidence of PW.1 is in consonance with that.
However, he remained silent as to the cause of the fire.
It is important to note that the veracity of this witness was not doubted, much less he was not declared as hostile.
P.W.2 is the wife of PW.1.
According to this witness, the deceased set herself, on fire.
Even this witness was not declared hostile.
PWs.3 and 4 are neighbours and both of them stated that the deceased set herself on fire.
They too were not declared hostile.
Pws.5 and 6 are the parents.
Normally, we find the instances where the parents of a woman, who died under suspicious circumstances in the house of her in-laws; would tend to implicate the husband and the in-laws of the deceased woman.
In the instant case, PW.5 clearly stated that he does not know the cause of the death of his daughter, the deceased.
PW.6 went a step ahead and said that her daughter died by setting herself on fire.
In addition to these witnesses, two brothers of PW.5 and a brother of PW.6 were also examined as witnesses and they too did not point any finger of suspicion towards the accused.
The trial Court rested its conclusion about the guilt of the accused, solely upon the dying declarations.
Two aspects assume significance in this behalf.
The fiRs.is about timing and the second is about the content.
Whenever a person and, in particular, a woman is found to have received burn injuries in the house of her husband or in- laws, the fiRs.step that must result is the registration of a crime and the immediate recording of dying declaration either through a Magistrate or by the police official available at the spot.
Though the incident occurred on 30.08.2009, the dying declarations Ex.P11 and P14 came to be recorded only on 04.09.2009 i.e., after a gap of six days.
In between, number of persons including PWs.5 and 6, the parents of the deceased, have interacted with the deceased.
If, in fact, the deceased told that she sustained burn injuries in the hands of the accused, at least one of such witnesses would have stated that.
There cannot be more proximate person to a woman than her parents.
The prosecution did not even suggest that the parents i.e., Pws.5 and 6 are won over by the accused.
The second is about the form of declaration.
Recording of dying declaration six days after the incident would have its own impact upon its credibility.
It was elicited from PW.14, the Magistrate, that he did not mention in Ex.P11 that he found the person from whom he was recording the statement, was conscious and that he did not read over the contents of the declaration to that person.
Rule 33 of the Criminal Rules of Practice assumes significance in this regard.
Sub- Rule (4) thereof mandates that after the statement is recorded, it shall be read over to the declarant and his or her signature must be obtained thereon if possible and it is only then that the Magistrate shall sign the statement.
In the cross-examination, this is what PW.14 stated ".I did not mention in the D.D that the patient was conscious and coherent.
It is true that I did not mention the contents were read over and explained and she understood the contents.".
With this admission of P.W.14, the legal acceptability of Ex.P11 suffers a serious dent.
Ex.P14 was recorded by the Station House Officer just one hour before Ex.P11 was recorded.
Though, in a given case, the declaration recorded by the police official can be taken into account, it would be possible if only the Magistrate was not available immediately and the recording cannot await any longer.
By the time Ex.P14 was recorded, requisition was already given to P.W.14.
Even otherwise, a perusal of Ex.P14 does not disclose that the precautions that are stipulated under law were taken.
It is true that if a declaration, which accords with law, is available, the accused can be convicted based upon it.
It is desirable that the declaration must be supported and corroborated by other evidence and if, for any reason, such other evidence is not available, the dying declaration can constitute the basis to convict.
However, when the declaration itself does not accord with law, it is not at all safe to rest a conviction upon it.
The reason is not too far to seek.
The cardinal principle that runs through the entire criminal trial is the availability of the person making the allegation or accusation, for cross-examination.
The person from whom the dying declaration is recorded is obviously not available for cross-examination.
The law presumes truthfulness on the part of the person who is making the statement, since he or she is virtually at the end of the life.
Notwithstanding the sympathies, which the law can exhibit towards a person who lost the life, the liberty of another person cannot be put at stake, unless valid basis exists there for.
It is only when the dying declaration is perfect in all respects and is free from any defect, that it can be treated as the sole basis to convict an accused.
Viewed in this context, we find it difficult to sustain the conviction ordered against the accused.
In the result, the Criminal Appeal is allowed.
The conviction and sentence ordered in S.C.No.164 of 2010 on the file of the II-Additional District & Sessions Judge (FTC).Sanga Reddy, dated 12.11.2010, against the appellants- accused, are set aside.
The appellants-accused shall be set at liberty forthwith, if they are not required in any other case.
The fine amount, if any, paid by the appellants-accused shall be refunded to them.
______________________ L.NARASIMHA REDDY, J _________________ M.S.K.JAISWAL,J Dt: 12.02.2014