HONOURABLE SRI JUSTICE L.NARASIMHA REDDY AND HONOURABLE SRI JUSTICE M.S.K. JAISWAL CRIMINAL APPEAL No.1199 of 2009 13-02-2014 Kalvacheria Prabhakar S/O Kistaiah ...Appellant State of A.P., rep by Public Prosecutor, High Court, Hyderabad...Respondent Counsel for the Appellant:Sri Challa Srinivasa Reddy Counsel for the Respondent:Public Prosecutor : ?.Cases referred:Nil JUDGMENT
: (Per Hon'ble Sri Justice L. Narasimha Reddy) Accused No.1 in S.C. No.350 of 2007 on the file of the Principal Sessions Judge, Warangal, filed this appeal assailing the conviction and sentence ordered against him.
2. Together with A-1, his brother A-2 and his sister A-3 were tried for the offences punishable under Sections 498-A and 302 IPC alleging that they have killed one Bandi Renuka on 16.12.2005. Through its judgment dated 15.09.2009, the trial Court acquitted all the accused, of the offence punishable under Section 498-A IPC. It has also acquitted A-2 and A-3 of the offence punishable under Section 302 IPC. A-1 alone was convicted for the offence of committing murder and sentenced him to undergo imprisonment for life. Fine of Rs.20,000/- was imposed and in default, he was directed to undergo simple imprisonment for three and half years.
3. The case, as presented by the prosecution was that the deceased was married about 23 years ago to one Mr. B. Krishna of Shivanagar area of Warangal, and that the appellant was his neighbour. Out of that wedlock, the couple had two sons and a daughter. Krishna is said to have suspected the fidelity of Renuka and has divorced her about 15 years ago. Thereafter, the appellant and Renuka were said to have jointly purchased a house at Rangashaipet and lived there with the children of Renuka. About one year prior to the incident, Renuka is said to have insisted that marriage of her daughter be performed by selling the house and a quarrel ensued when the accused did not agree for that proposal. Eversince then, she is said to have been living with her children in a rented house owned by PWs.2 and 3, in the Kashibugga area.
4. On 16.12.2005, the appellant is said to have come to the house of Renuka at about 12.30 p.m. and taking advantage of the fact that her sons went to the college and daughter went to the house of neighbours, the appellant poured kerosene on her observing that as long as she is alive, he cannot get married, and thereafter set her on fire. The deceased was shifted to M.G. Hospital, Warangal with burn injuries. Her statement was recorded by PW-11. On the basis of that, Crime No.314 of 2005 was registered by P.S., Inthezargunj. While undergoing treatment, she died on 22.12.2005. Taking note of the same, the provision of law, mentioned in the FIR was altered. The formalities that are required under law such as causing inquest and post mortem were completed. The investigating officers, PWs.12 and 13 conducted investigation and filed charge sheet. As observed earlier, the trial Court convicted the appellant alone and sentenced him as mentioned above.
5. Sri Challa Srinivasa Reddy, learned counsel for the appellant - accused No.1 submits that PWs.1 to 3 who deposed on behalf of the prosecution are not eye witnesses to the incident and their evidence is hardly of any use. He contends that there are two dying declarations recorded from the deceased and there are serious contradictions between them. He submits that while in Ex.P- 12, the dying declaration recorded by the police, the deceased stated that the appellant poured kerosene on her and set her ablaze with a match stick, in Ex.P- 7 recorded by the Magistrate, which is about half an hour later, she changed her version and stated that the appellant had thrown a lamp to set her on fire. Learned counsel submits that the incident is said to have taken place at 12.30 p.m. and the question of there being any lamp which is already lit, does not arise. He further submits that the prosecution miserably failed to prove its case, but the trial Court convicted the appellant.
6. Learned Public Prosecutor, on the other hand, submits that the contradictions pointed out by the learned counsel for the appellant, is trivial in nature. She contends that there was longstanding cohabitation, between the appellant and the deceased; and on account of the differences that have arisen between them, the appellant resorted to the act of killing the deceased. She contends that once the deceased was consistent as to the pouring of the kerosene by the appellant, the manner of lighting, virtually becomes insignificant.
7. All the three accused were tried for the offences punishable under Sections 498-A and 302 IPC; in relation to the death of the deceased before the trial Court. PWs.1 to 13 were examined. This is a rare case in which one of the accused deposed as a defence witness, as DW-2. A press reporter deposed as DW-1. MOs 1 to 3 were also taken on record. A-2 and A-3, who were tried for the offences under Sections 498-A and 302 IPC along with the appellant - A-1; were acquitted and the appellant alone was convicted for the offence of murder.
8. The only point that arises for consideration as to whether the conviction and the sentence ordered against A-1 can be sustained on facts and in law?.
9. This is a case in which there are no eye witnesses, but there are two dying declarations. We are conscious of the fact that the dying declaration must be given utmost importance, and if it is found to be true, no inconsistencies are noticed in it, even smallest of the corroborations would be sufficient to hold the accused, guilty.
10. The relationship between the appellant and the deceased is somewhat strange. The deceased was older by many years, to the appellant. The deceased was married to Mr. Krishna and they had three children. The case of the prosecution was that the deceased developed illicit intimacy with the appellant and on noticing that, Krishna divorced her. The appellant and the deceased were said to be living together for about 15 years before the incident. However, according to the deceased, she was living separately from the accused atleast for a period of one year preceding the incident. Though she stated that herself and her children were driven away from the house of the appellant by his brother and sister i.e. A-2 and A-3, the same was not proved.
11. The burn injuries on the deceased were first noticed by PW-1 - her daughter, PWs.2 and 3, the owners of the house, and PW-4 the neighbour. The first step taken by them was that the deceased, with burn injuries, was shifted to the hospital. No complaint as such, was submitted by them. The basis for registering the crime is the statement recorded from the deceased, by PW-11. PW-1 the daughter of the deceased stated that by the time she came to their house, the deceased was lying in front of the house with burn injuries and the appellant was running away. Almost to the same effect, is the evidence of PWs.2 to 4. This evidence is not of much help, to arrive at a conclusion as to who might have set the deceased, on fire.
12. The first dying declaration, Ex.P-12, was recorded by PW-11 at 3.00 p.m. After giving the brief description of her marriage with Krishna, their begetting children, her intimacy with the appellant and the cropping up of differences between them, she stated as under: "..... Unable to bear such harassment about one year ago I shifted my residence from Rangshaipet to Kashibugga and started living on rent in the house of my uncle Lakum Venkatarajam and eking out my livelihood by rolling beedies. Even though we were living away Prahbakar used to come drunk daily and stating that unless you die I cannot marry and I cannot get my house, he used to beat me and harass me. Today i.e. on 16.12.2005 after my son Srinu had gone to college, seeing that my daughter Rajitha had gone to a neighbouring house my husband Prabnhakar at 12.30 p.m. in the afternoon stating that unless you die I cannot be married, poured kerosene on me and set me afire with a match stick. My husband Prabhakar assuming that if I were alive he could not marry, that he would not get the house, that he would have to perform the marriage of my daughter, with an intention to kill me somehow poured kerosene on me and set me afire. This is the truth.".
13. From this, it becomes clear that the cause of injuries suffered by her is the pouring of kerosene and setting her on fire 'with match stick.' 14. Even before recording Ex.P-12, PW-11 appears to have issued a requisition to the jurisdictional Magistrate - PW-8. The Magistrate arrived at the hospital hardly, before the recording of Ex.P-12 was complete. He has taken the precautions, which are stipulated under the relevant provisions of law and on being satisfied that the witness is in a position to speak and is conscious, he recorded the statement Ex.P-7. We find several improvements and discrepancies in Ex.P-7. The deceased made a mention of lodging of a case in P.S., Labour Colony against the appellant, which she did not state in Ex.P-12. About the cause for the injuries upon her body, the deceased stated in Ex.P-7 as under: ".... When I asked him how marriage of my daughter will be perform my husband said that he will perform it if you die. Today my husband poured kerosene on me and threw an oil lamp on me. My whole body has burnt.".
15. We find that the appellant is said to have thrown an oil lamp after pouring kerosene on her. This is totally different from what was stated by the deceased in Ex.P-12, recorded hardly half an hour earlier.
16. Utmost importance is given to the dying declaration on account of the fact that the version emerges directly from the victim who is almost at the threshold of the death and one does not expect them to implicate any innocent persons. Where, however, any inconsistencies are found within the versions presented by the same victim, the Court has to proceed with a bit of caution. The two versions are to be assessed with utmost care, because the person who made that is not available to confront him with the contradictions. Though the form of the dying declarations recorded from the deceased is perfect, the contents thereof, present a substantial inconsistency.
17. The minor variations in a dying declaration can certainly be ignored as long as the cause of death is stated consistently. The statement in Ex.P-11, if viewed in isolation, would certainly constitute the basis for convicting the accused. However, once a different version has emerged in Ex.P-7, the sanctity of the first one gets diluted. Further there is something unnatural in Ex.P-7. The incident is said to have taken place at 12.30 p.m. in the after noon. The question of there being any lamp, which is already lightened, does not arise. Added to that, the record discloses that the lamp was said to be a chimney. Kashibugga is a part of Warangal City and one hardly expects even poorest of the families living in that locality, to use chimneys, that too in day time.
18. The life of the deceased was not that smooth and it has taken several abnormal turns. She parted ways with her husband about 15 years ago even while they had grown up children. According to her version, she is living with the appellant by treating him as her husband. The appellant is five years younger to her. Though she made a mention about filing of complaint against the appellant, the same was not brought on record. The very theory of the prosecution that the appellant is the husband of the deceased and himself and his brother and sister harassed the deceased for additional dowry or other such things, and committed offence punishable under Section 498-A IPC, fell to ground, once it was established that there was no marriage between the deceased and the appellant.
19. In his deposition as D.W-2, the appellant stated that the husband of the deceased i.e. Krishna had illicit relationship with another woman and in relation to a case which arose out of an attempt of the said woman to commit suicide, the relatives of the deceased tied him i.e. the appellant, to a Neem tree and beat indiscriminately. On a complaint said to have been made by A-2 and A-3 to the Deputy Superintendent of Police, he was said to have been released. He alleged that he was implicated by Krishna, the husband of the deceased, only with a view to knock away the property. In the cross examination, nothing substantial was elicited from him. Though we are aware of the limited context in which the evidence of the accused can be taken into account, we cannot eschew it altogether in the process of understanding the sequences of events. This Court finds it difficult to sustain the conviction and sentence ordered against the appellant.
20. In the result, the Criminal Appeal is allowed. The conviction and sentence ordered in S.C.No.350 of 2007 on the file of the Principal Sessions Judge, Warangal, dated 15.09.2009, against the appellant-accused No.1, are set aside. The appellant-accused No.1 shall be set at liberty forthwith, unless his detention is needed in any other case. The fine amount, if any, paid by the appellant-accused No.1 shall be refunded to him. ____________________ L. NARASIMHA REDDY, J ___________________ M.S.K. JAISWAL, J February 13, 2014.