THE HON'BLE SRI JUSTICE A.GOPAL REDDY AND THE HON'BLE SRI RAJA ELANGO
CRIMINAL APPEAL No.1378 of 2007
20-06-2011
A.Shankaraiah
The State of A.P.
Counsel for Petitioner:K.Rajitha
Counsel for Respondent :Public Prosecutor
:JUDGMENT: (per The Hon'ble Sri Justice Raja Elango)
This Criminal Appeal under Section 374 (2) of the Code of Criminal
Procedure (for short 'Cr.P.C.') is filed by the appellant-accused questioning
the judgment of conviction passed in Sessions Case No.47 of 2007 by the
Principal Sessions Judge, Nalgonda, on 25.07.2007 wherein the appellant was
convicted under Section 235 (2) Cr.P.C. and sentenced to undergo imprisonment
for Life and also to pay fine of Rs.2,000/-, in default to suffer simple
imprisonment for six months, for the offence punishable under Section 302 of
Indian Penal Code (for short 'IPC').
2) The case of the Prosecution, in brief, is that about four years prior
to the incident in the present case, the marriage of the deceased was performed
with the appellant. At that time, net cash of Rs.20,000/-, gold and silver
ornaments and household articles worth Rs.40,000/- were given towards dowry.
Thereafter, the couple led happy marital life for six months and thereafter
accused started harassing the deceased to bring additional dowry. Even after
taking Rs.10,000/- towards additional dowry from the parents of the deceased for
house construction house, accused continued his harassment on the deceased. On
24.09.2006 when the mother and brother of the deceased questioned the accused
about his harassment, accused picked up quarrel with them and manhandled the
deceased. On seeing the same, the mother and brother of the deceased left the
place and took shelter in the house of one Rama Chandram. While so, on the same
day at about 2100 hours accused again picked up a quarrel with the deceased,
poured kerosene on her and lit fire. On hearing the cries of the deceased, her
mother, brother and other neighbours went there, put off fire and shifted her to
Govt. Quarters Hospital, Nalgonda. On 27.09.2006 while undergoing treatment the
deceased succumbed to burn injuries. In the meanwhile, the dying declaration of
the deceased was recorded by the Judicial First Class Magistrate, Nalgonda.
Basing on the complaint lodged by the mother of the deceased on 26.09.2006,
Police registered a case in crime No.82 of 2006.
3) The investigation agency after completion of entire investigation and
receiving necessary certificates filed charge against the sole accused, which
was numbered as P.R.C. No.91 of 2006 by the Judicial Magistrate of First Class,
Nalgonda.
4) On committal, the learned Sessions Judge examined the accused under
Section 228 of the Code of Criminal Procedure and framed charge under Sections
498A and 302 IPC, in which, the accused denied the charges and claimed for
trial.
5) In order to prove the guilt of the accused, Prosecution examined PWs 1
to 10 and marked Exs.P.1 to P.11. After closure of Prosecution evidence,
accused was examined under Section 313 Cr.P.C. in which he denied the
incriminating evidence put to him available in the evidence of Prosecution
witnesses. Accused did not choose to adduce any oral and documentary evidence
on his behalf. After hearing the arguments on both sides and on appreciation of
entire evidence, the learned Session Judge acquitted the accused for the offence
punishable under Section 498A IPC and convicted him for the offence punishable
under Section 302 IPC by impugned judgment.
6) Heard the learned counsel for the appellant and the learned Public
Prosecutor for the State.
7) P.Ws.1 to 3 are the mother, brother and father of the deceased
respectively. All these three witnesses turned hostile deposing that the
deceased poured kerosene on herself and burnt herself. Statements of these
witnesses under Section 161 Cr.P.C. are marked as Exs.P.2 to P.4 respectively.
Thumb impression of P.W.1 on complaint is marked as Ex.P.1.
8) P.W.4 is the panch witness for scene of offence and recovery
panchanama. P.W.5 is the panch witness for inquest panchanama and he turned
hostile deposing that at the instance of Police he signed on inquest panchanama.
9) P.W.6 is the then Judicial Magistrate of First Class, Nalgonda, who
recorded the dying declaration of the deceased under Ex.P.6. P.W.7 is the then
Mandal Revenue Officer, Munugode Mandal, Nalgonda District, who conducted
inquest over the dead body of the deceased vide Ex.P.7. P.W.8 is the Civil
Assistant Surgeon, who held autopsy over the dead body of the deceased and
issued Ex.P.8 Post Mortem Examination report opining that the cause of death of
the deceased is due to burns and the deceased died 6 to 12 hours prior to his
post-mortem examination.
10) P.W.9 is the Head Constable who registered the crime, recorded
statement of P.W.1, visited Government Hospital, Nalgonda, recorded the
statements of PWs 2 and 3, visited scene of offence, conducted scene of offence
panchanama, drawn sketch of scene of offence before mediators. During his
examination Exs.P.9 to P.11 FIR, scene of offence panchanama, rough sketch
respectively were marked.
11) P.W.10 is the Circle Inspector of Police, Chandur Circle, who
conducted further investigation in the matter, arrested the accused on
10.10.2006, produced him before the Magistrate and on completion of
investigation filed charge sheet.
12) After evaluating the above evidence, the learned Sessions Judge
convicted the appellant mainly relying on Ex.P.6, dying declaration recorded by
the learned Magistrate P.W.6.
13) Learned counsel for the appellant raised the following two contentions
in support of his case:
1) In the absence of any other corroborative evidence, the
dying declaration cannot be acted upon, and
2) the incriminating circumstance mentioned in the dying
declaration-Ex.P.6 was not put to the accused when
examined under Section 313 Cr.P.C., which caused
prejudice to the accused.
Thus, the conviction imposed on the appellant is not sustainable.
14) For proper appreciation of the case, the relevant portion of Ex.P.6-
dying declaration (as per translated copy) is extracted hereby:
"........
1) How you received burnings?
Ans: I have been married since 6 years. After the marriage my husband was
behaved well for a year. Later he started beating me. I do not know what is in
his mind. He used to beat me severely. He used to beat me like a buffalo.
Today 24-09-2006 night he bring kerosene tin which was kept in house, poured on
me, lit me and fled away. At that time we two persons were in the house.
Myself and my husband living by doing labour work. My husband beats me at the
instance of my other-in-law Latchamma. My parents belong to Kondapuram village
of Chandur Mandal.
2) Place of accident/incident, date and time?
Ans : In our house in the night at about 9'O clock.
3) Name of the person injured or burnt you?
Ans: My husband Shankar
4) Whether above injuries/burnings are accidental or
intentional to harm you?
Ans : I don't know why he poured kerosene on me.
............."
In the said dying declaration, the deceased informed about time, the
manner in which she was subjected to burn injuries and the person by whom she
sustained injuries. The said dying declaration is considered as sole ground by
the learned Sessions Judge in convicting the accused.
15) It is well settled that 'the Court can act upon the dying declaration
on the basis of the facts and circumstances of each and every case. There is no
straight jacket formula to be adopted when the dying declaration inspires the
confidence of the Court and does not suffer with any infirmities or which
creates any doubt, the manner in which it is recorded and also the declarant
person not tutored by any one'.
16) In the present case, the said dying declaration has to be appreciated
in the light of the evidence adduced by the other witnesses. P.W.1 is none
other than the mother of the deceased. The said witness was treated as hostile
since she has not supported the prosecution case and also denied the execution
of Ex.P.1-complaint. Further, she informed the Court that the accused was not
present at the time of death of the deceased, and also informed that her
daughter was alone in her house. She further informed the Court that they
advised the deceased not to tell the Police that she committed suicide. P.W.1
further stated that "by the time the Magistrate came the relatives were present
near the deceased".
17) P.W.2 who is the brother of the deceased also turned hostile and not
supported the prosecution case. P.W.3, the father of the deceased, informed
the Court that his daughter committed suicide. He further stated that the
deceased has not complained anything against the accused. In cross-examination
also he deposed that "the deceased told me that she got herself burnt". P.Ws.4
and 5 also not supported the prosecution case.
18) P.W.6, the Magistrate who recorded the dying declaration of the
deceased, stated the manner in which he recorded the same. In the light of the
above evidence adduced, this Court is of the view that the said dying
declaration alone cannot be found basis for convicting the accused, more
particularly, for an offence punishable under Section 302 IPC, which is
punishable either with death or life imprisonment and it is highly unsafe to
convict the accused only on the basis of the dying declaration.
19) As far as the second contention of the learned counsel for the
appellant is concerned, a close scrutiny of Section 313 Cr.P.C. is necessary.
Section 313 Cr.P.C. runs as follows:
" 313. Power to examine the accused: (1) In every inquiry or trial, for the
purpose of enabling the accused personally to explain any circumstances
appearing in the evidence against him, the Court-
(a) may at any stage, without previously warning the accused put such
questions to him as the court considers necessary,
(b) shall, after the witnesses for the prosecution have been examined and
before he is called on for his defence, question him generally on the case.
............"
In the said provision the words 'enabling the accused personally to
explain any circumstances appearing in the evidence against him' clearly
indicate that opportunity should be given to the accused to explain regarding
the incriminating circumstances appearing against him.
20) Learned counsel for the appellant relied on the judgment of the Apex
Court in Ajay Singh v State of Maharashtra1 wherein it was held that :
"E.Penal Code, 1860 - S.302 - Bride burning - Trial court finding
appellant-accused guilty on grounds that accused made extra-judicial confession
before PWs and that kerosene was found on accused's dress which he was wearing
at the time of the occurrence - high Court concurred with the conclusion - But
Supreme Court found that it would be unsafe to place reliance on the so-called
extra-judicial confession - No question in that regard to the finding of
kerosene on accused's dress was put to accused in examination under S.313
Cr.P.C.- Held on facts, prosecution failed to establish charge under S.302
against accused."
Learned counsel also relied on Shaik Maqsood v State of Maharashtra2
wherein with reference to sections 313 and 315 Cr.P.C. it was held that:
"...... 13. The object of examination under this section is to give the
accused an opportunity to explain the case made against him. This statement can
be taken into consideration in judging his innocence or guilt. Where there is
an onus on the accused to discharge, it depends on the facts and circumstances
of the case if such statement discharges the onus.
14. The word 'generally' in sub-section (1) (b) does not limit the nature
of the questioning to one or more questions of a general nature relating to the
case, but it means that the question should relate to the whole case generally
and should also be limited to any particular part or parts of it. The question
must be framed in such a way as to enable the accused to know what he is to
explain, what are the circumstances which are against him and for which an
explanation is needed. The whole object explaining circumstances which appear
against him and that the questions must be fair and must be couched in a form
which an ignorant or illiterate person will be able to appreciate and
understand. A conviction based on the accused's failure to explain what he was
never asked to explain is bad in law. The whole object of enacting Section 313
of the Code was that the attention of the accused should be drawn to the
specific points in the charge and in the evidence on which the prosecution
claims that the case is made out against the accused so that he may be able to
give such explanation as he desires to give.
15. The importance of observing faithfully and fairly the provisions of
Section 313 of the Code cannot be too strongly stressed:
'30. ..... it is not sufficient compliance to string together a long
series of facts and ask the accused what he has to say about them. He must be
questioned separately about each material circumstance which is intended to be
used against him. .... The questioning must, therefore, be fair and must be
couched in a form which an ignorant or illiterate person will be able to
appreciate and understand. Even when an accused person is not illiterate, his
mind is apt to be perturbed when he is not facing a charge of murder. ...
Fairness, therefore, requires that each material circumstance should be put
simply and separately in a way that an illiterate mind, or one which is
perturbed or confused, can readily appreciate and understand.'
21) The learned Sessions Judge on the basis of evidence given by P.W.6 put
the following question during the examination of the accused under Section 313
Cr.P.C.:
Q.2 : PW-6 (G.Raja Gopal), J.F.C.M., Nalgonda, deposed in his evidence
that on 24-9-2006 at about 11.30 p.m. he received requisition from the
Government Hospital, Nalgonda, through Home Guard 260 of Nalgonda P.S. to record
the dying declaration of your wife. He identified the patient with the
assistance of Duty Doctor Sri D.Yadaiah, Civil Asst. Surgeon to ascertain the
condition of the patient, he put preliminary questions to the patient, and after
having satisfied with the answers given by her, he obtained the signature of the
Duty doctor. He recorded the dying declaration of your wife; Ex.P-6 is the
dying declaration of your wife. The recording of dying declaration was
completed at 00.15 hours i.e. on the intervening night of 24/25-09-2006. The
contents of the statement were read over to your wife, and she admitted the
contents to be true and correct. What do you say?
22) As discussed earlier, the dying declaration contains the time of
occurrence, the manner in which the deceased was subjected to burn injuries and
the person by whom she sustained injuries, whereas the question put by the
learned Sessions Judge does not disclose the incriminating circumstances against
the appellant-accused, which clearly indicates that the trial Judge miserably
failed in his duty. It is unfortunate to note that the learned Sessions Judge
has failed to put the most incriminating circumstance available in Ex.P.6-dying
declaration recorded by P.W.6, which is the basis for convicting the appellant.
23) Further, while recording Ex.P.6 dying declaration by the Magistrate,
the deceased stated that her brother-in-law (elder brother of her husband) by
name Sailu brought her in an auto to the hospital. But, the said person was not
examined by the prosecution and he was not even cited as a witness.
24) Further, in the present case, the prosecution case is commission of
murder by the appellant whereas as per the evidence adduced by the witnesses,
the deceased committed suicide. If an opportunity was given to the appellant,
he would have explained the Court regarding the said incriminating statement
given by the deceased to the Magistrate.
25) It is pertinent to mention here that in a case of dying declaration,
the opportunity of cross-examination of the declarant will not be available to
the accused. Hence, it is necessary for the trial Judge to put the
incriminating material in a perfect manner to the accused so as to give an
opportunity to him to explain his case. It is also to be noted that the
Legislature taking into consideration the importance of provision under Section
313 Cr.P.C. amended the same by incorporating a new provision, which runs as
follows:
"313 (5) The Court may take help of Prosecutor and Defence Counsel in
preparing relevant questions which are to be put to the accused and the Court
may permit filing of written statement by the accused as sufficient compliance
of this section".
In view of the above discussion, we are of the view that it is unsafe to
convict the accused basing solely on the dying declaration. Hence, the same is
liable to be set aside.
26) In the result, the Criminal Appeal is allowed. The conviction and
sentence imposed on the appellant-accused by the learned Principal Sessions
Judge, Nalgonda, in Sessions Case No.47 of 2007 on 25.07.2007 for the offence
punishable under Section 302 of Indian Penal Code are hereby set aside and he is
acquitted for the said offence. Appellant-accused be set at liberty forthwith,
if he is not required in any other case. The fine amount paid by the appellant,
if any, shall be returned to him.
