*THE HONOURABLE SRI JUSTICE K.C.BHANU AND THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO + CRL.A.NOs.870 & 1111 OF 2007 % 27-12-2010 # P.T.M.Marappa and another ….Appellants Vs. $ State represented by Inspector of Police, Madanajpalle …. Respondents !Counsel for the Appellants : Mrs.P.S.Manjula Kumar, legal aid for Appellant in Crl.A.No.870 of 2007 and Mr.E.Peddanna for appellant in Crl.A.No.1111 of 2007 Counsel for the Respondents: Public Prosecutor <Gist : >Head Note: ? Cases referred: 1. 2004(2) ALT Crl. 571 2. 2009 (1) ALD Crl. 515 (AP). THE HON’BLE SRI JUJSTICE K.C. BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.A.NOs.870 & 1111 OF 2007 COMMON JUDGMENT;-(Per NRLN,J) Both appeals are filed against the conviction and sentence in Sessions Case No.90/2006 on the file of the Court of Second Additional District and Sessions Judge, Chittoor at Madanapalle for convicting the Accused No.1 for an offence Under Section.302 of the Indian Penal Code, 1860 (IPC) and Accused No.2 for an offence Under Section. 302 read with 109 IPC. The Brief case of the Prosecution is that the deceased P.T.M Anjamma was the wife of A1 and A2 is mother of A1. PW1 is father of the deceased and PW2 is mother. The deceased was given in marriage to A1 about 3 years prior to 26.12.2004. The deceased could not bring sufficient dowry and the deceased is second wife of A1 and both accused suspected her fidelity. The accused has harassed and beating her. On 26.12.2004 at about 10.30 PM when the deceased was sleeping in the house along with her child, A2 picked up a quarrel and abused her. When the deceased asked as to why he was abusing her A2 instigated A1 to pour kerosene on the deceased and kill her so that A1 can be married again. In pursuance of the abatement, A1 poured kerosene on her and set her to ablaze. The neighbours PWS.3&4 gathered and informed to PWS.1&2 and the deceased was taken to hospital where her statement was recorded by PW 4 and on that basis a case in Crime No.123/2004 was registered U/s 307 r/w 34 IPC and investigated into. During the course of investigation the statement of witnesses was recorded and statement of deceased was also recorded by PW 19. Subsequently, the deceased died on 22.02.2005. On receipt of the death information, the section of Law was altered to 302 r/w 34 IPC and inquest was also held over the dead body of the deceased and it was sent for post-mortem examination. During the course of examination on 28.12.2004, A1 and A2 were arrested and sent them for remand. After completion of investigation, Police filed a Charge sheet for an offence u/s 302 r/w 109 IPC. The case was taken on file in PRC No. 38/2005 by the II Additional Judicial Magistrate of 1st Class, Madanapalle and committed the same to the court of Sessions. The learned Second Addl. District Judge on appearance of the accused framed the charge u/s 302 IPC against A1 and 302 r/w 109 IPC against A2, for which both accused pleaded not guilty. On behalf of the prosecution, PWs 1 to 20 were examined and marked Ex. P1 to P26 and MOs 1 to 4. After the evidence of prosecution was over, the accused were examined u/s 313 CrPC and they did not adduce any defence. On consideration of the evidence, the learned II Addl. District and Sessions Judge convicted the accused and sentenced them to suffer life imprisonment in addition to fine. A1 has filed Criminal Appeal No.870 of 2007 and A2 has filed Crl.A.1111/2007. Heard Mrs.P.S.Majula Kumar, legal aid counsel on behalf of the appellant in Crl.A.No.870 of 2007 and Sri E.Peddanna, the learned counsel for the appellant in Crl.A.No.1111 of 2007 and the learned Public Prosecutor for the State. The points that arise for consideration are:- 1) Whether A-1 has committed murder of deceased at the abatement of A-2? 2) Whether the conviction and sentence imposed by learned II District Judge is legal and sustainable? POINTS:- On behalf of the prosecution PWs 1 to 9 who are said to be close relatives and neighbours at the scene of incident were examined and they did not support the prosecution case. The parents of the deceased also did not support the prosecution case. On the other hand they have given accommodative statements in the cross-examination to the effect that when the Dying Declaration (D.D) were said to have been recorded, the deceased was not in conscious and coherent. PW 10 deposed that he claims to have drafted Ex.P-12 complaint dated 23.02.2005 at the instance of PW 5 after the death of deceased. The evidence of PW.11 is about the presence at the observation of scene and seizure of MOs 1 to 4. The evidence of PW 12 is about the presence at the time inquest over the dead body of deceased. The evidence of PW 3 is about conducting PM examination over the dead body of deceased and also present at the time of D.D. recorded by the Magistrate. The evidence of PW 14 (S.I. of Police) is that he took up investigation in the case after statement of deceased was registered as FIR under Ex.P.17 and claims to have recorded the statement of deceased on 27.12.2004. He claims to have recorded the statement of deceased at the police station after she was brought in a tractor to the police station and he claims to have registered the case earlier. The evidence of PW.15 is about the completion of investigation and filing of charge sheet. The evidence of PW.16 is about the holding of inquest over the dead body of deceased. The evidence of PW.17 is about sending of intimation to the Magistrate for recording D.D. The evidence of PW.18 is about presence at the time of recording D.D. of the deceased by PW 19 and certifying about the consciousness of the deceased. The evidence of PW.19 is about recording D.D. of deceased at 10.20 AM on 27.12.2004. The evidence of PW 20 is about alteration of the Section of Law and holding of inquest. There is no direct evidence about the commission of offence by the accused and the alleged ill-feelings between the accused and the deceased. There is also no dispute about the fact that the learned Sessions Judge has relied on the two D.D.s which are available on record. The learned counsel for the appellant strenuously contends that the D.D.s which are Exs.P-17 and P-26 are inconsistent and the conviction cannot be based solely on the above D.D.s. According to them, the detailed statement under Ex.P-17 which is said to have been given by the deceased and which is the basis of a written complaint cannot be taken as true since it was already prepared and giving to the Police. The said D.D. which is relied on by the learned Sessions Judge shows as under:- “Today i.e. on 26.12.2004 at 10.30 PM, on the instigation of my mother in law my husband bet me, then I questioned him as to why he beat me. Then Venkatamma, the mother of my husband induced my husband to kill me by pouring kerosene and she also stated second marriage will be celebrated to my husband. On the instigation of my mother-in-law, my husband poured kerosene on my body (which is available in a plastic can in my house), and set fire to me. On hearing my cries (1) Gilakara Marakka, w/o Venkatappa, (2) Kukkala Gangulamma, W/o Kadirappa came there and put off the flames. So I request you to call for my husband and mother-in-law for enquiry and register the case against them and do justice to me.” Therefore, the above statement of the deceased clearly shows that it was at the instigation of the mother-in-law the crime was committed and there was also arrival of other neighbours. As against the statement, the D.D. under Ex.P-26 recorded by the Magistrate (PW.19) is not corroborative. According to them, except the allegations against A2 about the instigation the further act on behalf of A1 is not alleged. In order to appreciate this contention, it is useful to extract the statement of deceased in Ex.P-19 as under:- “Myself and my husband altercated with each other and while I was sleeping my mother-in-law started that what will happen if set fire by pouring kerosene. When I was feeding milk to my child and my husband poured kerosene and set fire and I sustained burns. They are asking to my villagers to repay the amount for which I stated that as to why asking every day and they will pay the amount on any one day. Then my mother-in-law stated why I am supporting them and she induced to pour kerosene and to set fire. That is happened.” As can be seen from the above statement, the statement ends with the fact that the mother-in-law induced to pour kerosene and set to fire. The statement does not disclose in pursuance of the abatement the accused poured kerosene on her and set her to fire. The statement is also conspicuously silent about the commission of offence by A1. Therefore, in view of the circumstances, implicit reliance cannot be placed on any of the D.D.s because both of them are not mutually supportive and the D.D under Ex.P-26 excludes the act of murder attributed to A-1 which was found established by the lower court. At this stage, we would like to add that under Section 32 of the Indian Evidence Act, 1872 the statement as to the cause of death of a person is relevant. Specific Rules have been made under Criminal Rules of Practice for the procedure for recording of D.D. Rule 33(1) of Criminal Rules of Practice reads as under:- 33.Dying declaration:-- (1) While recording a Dying Declaration, the Magistrate shall keep in view the fact that the object of such declaration is to get from the declarant the cause of death or the circumstances of the transaction which resulted in death. Therefore, it is mandatory that while recording a D.D, the Magistrate shall keep in view the purpose of recording of the statementee to know cause of the death or the circumstances of the transaction which resulted in death. In this case, evidently no effort was made to know the cause of death and culpability of A-1. The effort of any Magistrate is to put further questions to know about the cause of burns or injuries which results in the death at a later stage. If such material statement is not elicited from the person, no useful purpose will be served for such declarations recorded by the Magistrate. In this case, there is no doubt in our mind that the D.D recorded by the Magistrate is not satisfactory and is not in the spirit and the purpose for which the statement is to be recorded. Added to that it is the specific evidence of PW 14 who is the S.I. of Police that he has examined the deceased and recorded the statement. If that be so, the statement recorded by him has got more evidentiary value rather than a statement which was drafted and brought by the deceased to the police station which is Ex.P-17. But for the best reasons known to the prosecution the said statement which amounts to a D.D. is not placed before the Court. There is much evidentiary value to the statement recorded by PW.4 rather than a draft complaint brought by the deceased. Therefore, viewed from any angle the D.D.s under Ex.P- 17 and P-26 are not consistent and the statement recorded by the magistrate does not disclose the factum of offence. The non-furnishing of statement of deceased recorded by PW.14 entitles the appellants to draw an adverse inference. In this connection it is useful to refer to the decisions reported in Harijana Mulinti Bhushanna Vs. State of A.P., rep. by Public Prosecutor ([1]) and in A.Savithramma and another Vs. State of Andhra Pradesh ([2]). Therefore, for the above reasons, the accused are entitled for reasonable benefit of doubt and the conviction sentence imposed by the learned II Addl. District and Sessions Judge cannot be sustained. Accordingly, both appeals are allowed setting aside the conviction and sentence imposed by the lower court. The accused shall be at liberty forthwith if they are not required in any other cases. ____________ K.C.BHANU,J ____________________ N.R.L.NAGESWARA RAO,J 27-12-2010 Note: L.R.Copy to be marked: Yes (B/o) TSNR [1] 2004 (2) ALT (CRL)571 [2] 2009(1) ALD (CRL) 515 (A.P)