THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.246 of 2007 Date: 22.10.2009 Between : Nandepu Abraham … Appellant And State of A.P., rep.by Public Prosecutor, High Court, Hyderabad. … Respondent THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.246 of 2007 JUDGMENT : (per the Hon’ble Sri Justice R.Kantha Rao) This Criminal Appeal is directed against the judgment, dated 03.10.2006, in Sessions Case No.286 of 2004, passed by the VI Additional District and Sessions Judge (Fast Track Court), Markapur, Prakasam District, whereby and whereunder the appellant was convicted for the offences punishable under Sections 302 and 498-A of Indian Penal Code (for brevity “I.P.C.,”) and sentenced to undergo imprisonment for life and to pay a fine of Rs.200/-, in default to undergo Rigorous Imprisonment for three months for the offence punishable under Section 302 I.P.C., and also sentenced to undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs.200/-, in default to undergo Simple Imprisonment for three months for the offence punishable under Section 498-A I.P.C. 2. The case of the prosecution, in a nutshell, is as follows: Appellant is the husband of Nandepu Roothamma (hereinafter referred to as “the deceased”). Their marriage took place about eight years prior to the date of incident and they were blessed with two children. It is said that the appellant was suspecting the fidelity of the deceased and was contemplating to marry another woman. With the said view in mind, the appellant, having decided to do away with the life of the deceased, on 12.4.2004 at about 6-00 hours while the deceased was cooking food, poured kerosene on the deceased and set her on fire. Thereafter he escaped from the house. The deceased, who was caught in flames, raised cries and on hearing the cries, LWs.1 and 3 to 5 rushed to the house of the deceased and put off the flames and LW.1 shifted the deceased in the jeep of LW.2 to the Community Health Centre, Darsi. 3. On receiving intimation from the Community Health Centre, Darsi, LW.19, the then S.I. of Police, Darsi Police Station, visited the Community Health Centre and recorded the statement of the deceased under Ex.P.12 and forwarded the same to Kurichedu Police Station on point of jurisdiction. PW.9, the A.S.I. of Police, Kurichedu, registered a case in Crime No.48 of 2004 under the head of “Woman burns”. Subsequently, on a requisition from PW.9, PW.8, Judicial First Class Magistrate, Podili, who was FAC Darsi, rushed to the hospital and recorded the dying declaration of the deceased under Ex.P.11. Subsequently, basing on the dying declaration recorded by PW.8, PW.9 re-registered the F.I.R., by altering the section of law into 307 I.P.C. Thereafter, while undergoing treatment in Government General Hospital, Guntur, the deceased succumbed to burn injuries on 22.4.2004 at 5-50 hours. On receiving the death information of the deceased, PW.9 again re- registered the F.I.R. by altering the section of law into 302 I.P.C. and investigated into the offence. In fact, in this case, the entire investigation was conducted by PW.9, the A.S.I. of Police, PW.10, who was the Inspector of Police, Darsi Circle, only verified the investigation conducted by PW.9 and filed the charge sheet. 4. The prosecution in order to establish the guilt of the accused examined PWs.1 to 11 and marked Exs.P-1 to P-19, besides marking MOs.1 and 2. The appellant did not propose to examine any defence witnesses nor did he mark any documents on his behalf. 5. The learned Additional Sessions Judge on consideration of the entire evidence on record and having regard to the facts and circumstances of the case, convicted and sentenced the appellant as stated above. Aggrieved by the same, the appellant preferred the present criminal appeal. 6. We have heard Sri T.S. Rayalu, learned counsel appearing for the appellant-accused and also the learned Public Prosecutor appearing for the respondent-State. 7. Learned counsel appearing for the appellant would submit that the prosecution did not examine LW.19, the then S.I. of Police, Darsi Police Station, who recorded the statement of the deceased in the first instance, basing on which P.W.9 registered the F.I.R. after receiving the statement by transmit, that the versions in the statement recorded by LW.19 and the statement recorded by PW.8 Magistrate being mutually inconsistent, the conviction and sentence passed by the trial Court cannot be sustained. 8. On the other hand, the learned Public Prosecutor appearing for the State would submit that since the dying declaration of the deceased recorded by the Magistrate under Ex.P.11 is reliable, the trial Court rightly relied upon the same to base the conviction. He also contended that besides the dying declaration there is other evidence showing involvement of the appellant in the commission of the offence and, therefore, the conviction and sentence passed by the trial Court should be upheld. 9. It is true that a duty is cast on the prosecution to examine LW.19, the then S.I. of Police, Darsi, who recorded the statement of the deceased under Ex.P.12 soon after she was admitted in Community Health Centre, Darsi. What was mentioned in the statement recorded by LW.19, basing on which F.I.R. was registered, is the earliest version of the deceased. As per the defence version, the deceased was said to have been admitted by LW.1, the sister of the accused, in the Community Health Centre, Darsi. It is the contention of the learned counsel for the appellant that since the contents of the statement of the deceased recorded by LW.19, the then S.I. of Police, Darsi are against the prosecution story, the prosecution has purposefully withheld the said statement and, therefore, an adverse inference has to be drawn against the prosecution version. 10. We see some force in the contention of the learned counsel. However, we are not in acceptance with the contention urged by the learned counsel that on account of withholding LW.19 from being examined before the Court, the entire prosecution story can be thrown out without examining the material evidence on record. 11. As could be seen from the evidence, PW.8 Magistrate took all necessary precautions before and at the time of recording the dying declaration of the deceased under Ex.P.11. PW.7 the duty doctor, who was present at the time of arrival of the Magistrate to the Hospital, certified on the dying declaration that the patient was coherent and conscious and she was in a fit state of mind to give the statement. Further, the Magistrate in his evidence also stated that by putting some questions he is satisfied about the fit state of mind of the deceased to give statement. 12. The contents of Ex.P.12, the statement recorded by LW.19, the then S.I. of Police, Darsi, which are relevant, are as follows: “I am a resident of Kalluru village Kurichedu Mandal. My husband used to work as mason. I was married about 8 years back. I blessed with two children i.e., one son and one daughter. My parental village is Polepalli village of Donakonda Mandal. Today in the early hours while I was preparing rice on the kerosene stove by pouring kerosene in the stove, flames attacked to the middle of my sari and caused burn injuries. At that time my husband was not in the house. My husband’s sister shifted me to the hospital. At the time of occurrence my husband went to attend calls of nature. L.T.I. of N.Roothamma.” Whereas the contents of Ex.P.11, dying declaration of the deceased recorded by PW.8 Magistrate, which are relevant, are as follows: “Please say what had happened? I was going to prepare rice by litting a stove. My husband Abraham picked up kerosene tin and sprinkled kerosene on me and set fire with match stick. Due to flames to my body I raised cries “save me”. My husband sprinkled water on me. Later I fell on ground. I came out from the house and raised cries by saying “save me”. The neighbours, my junior maternal aunt and relatives came and shifted me to hospital in the jeep. My husband sprinkled kerosene by standing near the entrance on my back. What is the reason for doing this? With a view to marry second time, my husband did like this if I died. Is there anything to say? When I asked my husband why he did like this, he did not give any answer. I got family planning operation at Vinukonda about five months back. But my husband did not come to see me. For that I received the remuneration. On seeing the amount my husband brought me on the ground that he will look after me very well but used to beat me daily and also prevented to go to my parental house.” 13. It is true that the contents of Ex.P.12 statement recorded by LW.19-the then S.I. of Police, Darsi, and the contents of Ex.P.11 dying declaration recorded by PW.8-Magistrate are mutually inconsistent. As per the statement of the deceased recorded by LW.19, the deceased was caught in flames accidentally, whereas from the contents of Ex.P.11 dying declaration of the deceased recorded by PW.8 Magistrate, the appellant poured kerosene over the body of the deceased and set her on fire. 14. One dying declaration was recorded by the Police Officer and the other dying declaration was recorded by the Magistrate, after taking all precautions and after obtaining the certification of the doctor as to the fit state of mind of the deceased to give the statement. The law is now well settled that whenever the dying declarations are inconsistent, the Court need not automatically discard both the dying declarations, but it can place reliance on the dying declaration which was properly recorded and which inspires confidence of the Court about its truthfulness. 15. In the instant case, though the prosecution did not examine LW.19, the then S.I. of Police, the statement recorded by him under Ex.P.12 is very much there on record and basing on the said statement only PW.9, the A.S.I. of Police, Kurichedu Police Station, registered the F.I.R. Therefore, it cannot be said that the prosecution suppressed any material evidence. Further, PWs.1 and 2, who are the parents of the deceased, had categorically stated in their depositions before the trial Court that after arriving at the hospital, they questioned the deceased as to what happened and the deceased told them that the appellant poured kerosene and set her on fire. The statements made by the deceased to PWs.1 and 2 are nothing but oral dying declarations, which are admissible under Section 32 of the Indian Evidence Act and they are consistent with the dying declaration under Ex.P.11 recorded by PW.8 the Magistrate. 16. Further, the evidence on record indicates that PWs.1 and 2 arrived at the hospital only after the Magistrate recorded Ex.P.11 dying declaration of the deceased and, therefore, it cannot be said that the dying declaration recorded by the Magistrate is on account of tutoring by PWs.1 and 2. 17. It is contended by the learned counsel for the appellant that the prosecution did not examine LWs.1 to 5. But, on account of their non-examination no adverse inference can be drawn. Since they being the close relatives of the appellant, they will not support the prosecution version. Further, non-examination of some other witnesses cannot be said to be fatal, since their evidence would be nothing but repetition of what was stated by PWs.1 and 2. 18. The crucial aspect in the instant case is, from the evidence of PW.9, the Investigating Officer, no doubt that the appellant had been absconding since the date of incident and he only surrendered before Court 12 days after the incident. Admittedly, none of the witnesses saw the appellant in the hospital. Had the incident been known to the appellant, he must have been present in the hospital in normal course. In the statement recorded by LW.19 it is mentioned that the deceased stated to LW.19 that at the time of the incident the appellant went to attend the calls of nature. But the appellant stated in his examination under Section 313 Cr.P.C. that he went to Nandyal for coolie work prior to the date of incident and returned to the village 12 days after the incident and then surrendered before the Court. The version of the appellant in his examination under Section 313 Cr.P.C. clearly indicates that he was offering false explanation as to his presence on the date of incident, which furnishes an additional proof in the circumstances sought to be proved by the prosecution against him. Further, the inconsistency between the version of the appellant in his examination under Section 313 Cr.P.C. and the contents of the statement of the deceased recorded by LW.19 renders the statement recorded by LW.19 unreliable and the learned trial Court rightly discarded the said statement. 19. Thus, we are of the considered view that the trial Court had rightly placed reliance on the dying declaration of the deceased recorded by the Magistrate under Ex.P.11 and also basing on the oral dying declarations made by the deceased to PWs.1 and 2 and having due regard to the other circumstances rightly convicted and sentenced the appellant for the offences punishable under Sections 302 and 498-A I.P.C., and the same does not call for any interference in this appeal. 20. For the foregoing, the criminal appeal fails and is liable to be dismissed as having no merits. 21. In the result, the criminal appeal is dismissed confirming the judgment, dated 03.10.2006, in Sessions Case No.286 of 2004, passed by the trial Court. ________________________ JUSTICE D.S.R.VARMA _________________________ JUSTICE R.KANTHA RAO 22.10.2009. Msr THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.246 of 2007 22.10.2009 (Msr)