THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No. 894 of 2004 25th July, 2011 Between: M. Krishna … Appellant / accused And State of A.P. rep by Public prosecutor … Respondent THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No. 894 of 2004 JUDGMENT: This is an appeal against the conviction and sentence passed by the I-Additional Metropolitan Sessions Judge, Hyderabad in S.C.No.425 of 2002 on 12.01.2004. The appellant herein was prosecuted for offences under Sections 307 and 306 IPC. The unfolded case of the prosecution is that the deceased Yadamma was the mother of the accused and the accused and the deceased were living in one room and her elder son Srinivas and his wife i.e. PWs.1 and 2 were living in a separate room in the house bearing No.8-3-228/1280/100, Jawaharnagar, Yousufguda, Hyderabad. The accused was working in a transport company, but he failed to give his salary to his mother. On 23.11.2001, the accused came in a drunken condition late in the night to the house, upon which the deceased questioned and warned him, and the accused beat the deceased on that night. And on the next day morning at 8.30 A.M., when the deceased again questioned him and as to why he is consuming liquor and coming late in the night, the accused excited in a sudden and violent passion on the words of his mother, beat her, brought a plastic kerosene can and poured entire kerosene on her and tried to lit a match stick thrice to set fire to the deceased, but due to the timely intervention of his brother PW1, his cousin brother PW5, the accused was prevented from setting fire to the deceased. On rescuing, the deceased went outside her house and informed the neighbours about the accused pouring kerosene on her and attempting to kill her. Thereafter, she came back to her house and due to the acts of the accused she was vexed with her life and saying that there is no necessity for the accused to set fire to her, and she set fire to herself. The deceased committed suicide at the instance of the accused; and later while undergoing treatment in the hospital died due to burn injuries. The learned Sessions Judge framed charges under Sections 307 and 306 IPC against the accused and accused pleaded not guilty for the said charges. The prosecution in order to establish the said charges against the accused, examined PWs.1 to 11 and got marked Exs.P1 to P18 and MOs.1 to 3. The learned Sessions Judge, by taking into consideration the said oral and documentary evidence, found the prosecution has failed to prove the charge under Section 307 IPC, but proved the offence under Section 306 IPC and convicted and sentenced the accused to undergo Rigorous Imprisonment for four years and also to pay a fine of Rs.200/- in default to suffer Simple Imprisonment for one month. Aggrieved by the said conviction and sentence, the accused has filed the present appeal. Now the point that arises for consideration is whether the prosecution is able to establish the charge under Section 306 IPC against the accused beyond reasonable doubt. As per the record, the petitioner was directed to be released on bail on executing a personal bond for Rs.5,000/- with two sureties for a like sum each to the satisfaction of the V-Metropolitan Magistrate, Hyderabad, by order dated 13.04.2004; and the said order was recalled on 12.11.2009 and Non-Bailable Warrant was issued against the appellant to serve the sentence. Thereafter, the Sub-Inspector of Police, Jubilee Hills Police Station has sent a report stating that the accused was arrested and remanded to undergo sentence at Central Prison, Cherlapalli, R.R.District, as per the order dated 22.03.2011. Though Sri. Shaik Zaker Hussain, advocate has filed the appeal on behalf of the accused, he has not represented the matter on any date of hearing. As the accused is undergoing sentence, Sri.S.Nagendra, advocate was appointed as legal aid counsel to argue the appeal. Heard the legal aid counsel and the public prosecutor. The allegation made against the accused is that on 23.11.2001, the accused came home in a drunken condition late in the night and when the deceased mother questioned him, he beat her on that night and on the next day morning at 8.30 A.M. when she again asked him why he is consuming liquor and coming home late in the night, he got excited and in a sudden and violent passion, beat her, and brought a kerosene plastic can and poured entire kerosene on her and tried to lit a match stick to set fire to the deceased, but on the intervention of PW1 he could not able to lit fire to the deceased and thereafter, the deceased has gone out of the house and informed the neighbours that her son poured kerosene on her and attempted to kill her. Thereafter, she came back to her house and due to the acts of the accused she got vexed with her life and she set fire to herself and died while undergoing treatment at the hospital due to burn injuries. PW1 is the son of the deceased, PW2 is the daughter in law of the deceased and wife of PW1. Even though the said witness was present at the time of incident, they have turned hostile to the prosecution and has not supported the version of the prosecution. The neighbours PWs.3 to 6 have also turned hostile to the prosecution. PW8 who is said to have been present when the accused tried to set fire to the deceased with a match-stick has also turned hostile to the prosecution. PW10-the sister of the deceased has also turned hostile to the prosecution. Thus, the only evidence available on record in support of the case of prosecution is that the evidence of PW6 who is the mediator for the scene of offence panchanama and PW7-the Junior Civil Judge, Madanapally, who worked previously as XVI-Metropolitan Magistrate, Hyderabad, recorded the dying declaration of the deceased, PW9-the Doctor who conducted the autopsy of the dead body of the deceased and PW11- the investigating officer. Taking into consideration the said evidence, the learned Sessions Judge has observed that the prosecution could not establish the offence under Section 307 IPC, but found that the accused has committed the offence under Section 306 IPC. The learned Sessions Judge mainly relied upon the dying declaration recorded by PW7. Now it is to be examined whether the dying declaration recorded by PW7 which is marked as Ex.P8 is sufficient to establish the offence under Section 306 IPC against the accused. PW7 who worked as XVI-Metropolitan Magistrate, Hyderabad from May 2001 to April 2002 received a requisition from SHO, Jubilee Hills Police Station for recording dying declaration of the deceased Yadamma and he proceeded to the hospital and on identification of the deceased with the help of the duty doctor, obtained certificate from the doctor about the mental condition of the deceased and after satisfying himself, put preliminary questions to the deceased and recorded the dying declaration of the deceased. Nothing was elicited in the cross- examination to disbelieve his evidence with regard to recording the dying declaration given by the deceased. PW11-the investigating officer, on receipt of the information from Gandhi Hospital on 24.11.2011 at 6.00 A.M., proceeded to the hospital and recorded the statement of the deceased and obtained thumb impression and basing on the statement of the deceased, registered a case in Crime No.311 of 2011 under Section 307 IPC and issued FIR. Ex.P15 is the original FIR and thereafter he sent a requisition to the magistrate for recording the dying declaration of the deceased. Therefore, as per the record, the first statement recorded by PW11 is marked as Ex.P16 and another statement recorded by PW7 is marked as Ex.P8. The learned Sessions Judge has examined the contradictions between Exs.P8 and P16. Ex.P16 is the statement recorded by PW11-the investigating officer and it does not disclose that he has obtained any certificate from the Doctor about the condition of the patient at the time of recording the said statement; and on his enquiry, the deceased has narrated the entire incident to him and he reduced the same into writing. Therefore, the said recording of Ex.P16 does not disclose about the mental condition of the patient at the time of recording the statement by PW11. The next dying declaration was recorded by PW7 which was marked as Ex.P8. As per Ex.P8, the magistrate has put preliminary questions to satisfy himself about the condition of the patient and after satisfying himself, he started recording the dying declaration. Even after putting preliminary questions, he obtained certificate from the Doctor who endorsed that the patient is conscious, coherent and mentally stable to give statement and after confirming, recorded the dying declaration. Therefore, at the time of recording dying declaration Ex.P8, the patient is mentally stable and coherent and is in fit condition. In the decision reported in Paparambaka Rosamma & Ors v. State of A.P.[1], the Apex Court held that in the absence of certification by the doctor about the condition of the patient at the time of taking declaration, the said dying declaration is unacceptable. In the present case, as observed above, the Doctor has certified about the mental condition of the patient at the time of recording Ex.P8 and the magistrate has also satisfied himself about the condition of the patient. Therefore, the dying declaration Ex.P8 given by the deceased can be relied upon. In the said dying declaration, the deceased has stated that her younger son Krishna addicted to liquor, and her younger son-in-law encouraged and instigated all these addictions. Her younger son daily comes to the home in a drunken state, for which reason they quarrel. Today in the morning at 8.30 A.M., her younger son poured kerosene on her. Then her elder son Srinivas came and reprimanded her younger son and sent him away. After sending him away, she sat there itself weeping. Again Krishna came and kicked her. Thinking that why should she live, she lit match-stick and set herself ablaze. Therefore, the deceased set fire to herself, as the accused has poured kerosene on her when she asked the accused about his coming late to the house in a drunken condition, and again the accused kicked her and thereafter she got vexed with her life and set fire to herself. Therefore, the acts of the accused abetted the deceased to commit suicide. Moreover, the deceased is the mother of the accused and if no such incident as stated by her has not occurred, she would not have made false allegations against her own son when he is living with her in the same house. Therefore, the learned Metropolitan Sessions Judge, rightly found the accused guilty for the said offence under Section 306 IPC and the said finding does not warrant any interference in this appeal. Thus, the prosecution could able to establish the charge under Section 306 IPC against the accused beyond reasonable doubt. With regard to the quantum of sentence, the accused was sentenced to undergo Rigorous Imprisonment for four years and also pay a fine of Rs.200/- in default to suffer Simple Imprisonment for one month, for the offence under Section 306 IPC established against the accused. The punishment imposed by the lower Court is just and reasonable and does not warrant any interference by this Court. In the result, the appeal is dismissed and the conviction and sentence passed by the I-Additional Metropolitan Sessions Judge, Hyderabad, in S.C.No.425 of 2002 on 12.01.2004 is hereby confirmed. _____________________________ JUSTICE P. DURGA PRASAD 25th July, 2011 KSM [1] 1999 Criminal Law Journal 4321