HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1718 OF 2007 Dated:21-07-2011 BETWEEN: Syed Sardar Basha …Appellant AND State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1718 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice Raja Elango) The appellant-sole accused was put on trial for the offences under Sections 302 and 324 I.P.C. in S.C.No.119 of 2006 on the file of III Additional District and Sessions Judge (Fast Track Court), Nellore. By judgment dated 01.10.2007 he was convicted for the offence under Section 302 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs.100/-, in default to suffer simple imprisonment for two months. However, he was acquitted of the charge under Section 324 I.P.C. Hence the present appeal by the appellant-accused. 2. The gravamen of the charge against the accused is that on 18.10.2004 early hours at 5.00 a.m., at Sramikanagar, Nellore Rural Mandalam intentionally caused the death of Syed Shajadi (hereinafter called as ‘deceased’), aged 35 years, by pouring kerosene on her body and set fire and that he caused hurt to his daughter-P.W.1 when she tried to rescue the deceased. 3. The story of the prosecution as narrated during the course of trial is as under: The deceased is the wife and P.Ws.1 and 2 are the daughters of the accused. Marriage of accused with the deceased was held 20 years ago and they were blessed with two female and one male child and they were residing at Sramikanagar, Nellore. The deceased was attending for coolie work in a steel factory and the accused is a plumber. The accused developed suspicion over the fidelity of the deceased and he used to quarrel with the deceased every day during nights. On 17.10.2004 morning from 10.00 a.m. the accused started quarrelling with the deceased and continuously quarreled with her up to 18.10.2004 early hours. Due to unbearable nuisance in the night of 17.10.2004 neighbours chastised the accused. On 18.10.2004 early hours at about 5.00 a.m. the deceased came out of the house due to unbearable harassment of the accused, caught hold the shirt of the accused and questioned him as to why he was harassing her. On that the accused grew wild over the deceased and decided to do away with her. Then he picked up a kerosene tin available in the house, poured kerosene on the body of the deceased and set fire to her though his daughters-P.Ws.1 and 2 were requesting him not to kill the deceased. As a result of the fire, the deceased sustained burns all over her body and when P.W.1 tried to rescue the deceased by extinguishing fire, she also sustained burns on chest and right hand. On receipt of hospital intimation, P.W.8-Magistrate rushed to the hospital at 9.30 a.m. After putting preliminary questions, he recorded the dying declaration of the deceased as in Ex.P.3. On receipt of information, P.W.4 rushed to the scene, shifted the deceased and P.W.1 to D.S.R. Government Hospital and admitted for treatment. On receipt of requisition from the Hospital authorities under Ex.P.8, P.W.14-Head Constable rushed to the Hospital and recorded the statement of deceased as in Ex.P.7 at 10.30 a.m. Basing on Ex.P.7-statement, P.W.12-Assistant Sub-Inspector of Police registered a case in Crime No.281 of 2004 under Section 307 and 324 I.P.C. and issued Ex.P.9-F.I.R. Then he rushed to the hospital, examined P.Ws.1 to 3 and recorded the statement of deceased under Ex.P.10 and he rushed to the scene of offence, secured the presence of mediators-P.W.7 and others and observed the scene of offence and prepared Ex.P.1- observation report. He prepared the rough sketch under Ex.P.11 and seized M.O.1-kerosene tin and M.O.2-burnt saree of the deceased from the scene of offence. He also examined P.Ws.4 and 5. While undergoing treatment, the deceased died on 24.10.2004. On receipt of death intimation, P.W.13-Sub-Inspector of Police altered section of law to Section 302 and 324 I.P.C. and issued altered F.I.R.-Ex.P.13. Then he rushed to the Government Hospital, secured the presence of P.W.9 and two others and held inquest over the dead body of the deceased. Ex.P.4 is the inquest report. Then he sent the dead body for post-mortem examination. He recorded the statement of P.W.6 and others. Further investigation was taken up by P.W.15-Inspector of Police. On 25.10.2004 he visited the scene of offence and examined P.Ws.1 to 6 and others and as they reiterated their earlier statements, he had not separately recorded their statements. P.W.10 conducted autopsy over the dead body of the deceased and issued Ex.P.5-post-mortem certificate opining that the cause of death is due to shock due to extensive burns. P.W.11-Civil Assistant Surgeon at D.S.R. Hospital, Nellore examined P.W.1 on 18.10.2004 at 9.00 a.m., treated her and issued Ex.P.6-wound certificate opining that the injuries are simple in nature. On receipt of relevant reports and completion of investigation, P.W.15 laid the chare sheet against the accused. On committal, the learned Sessions Judge framed the charges against the accused, read over the same and explained it to the accused in Telugu. The accused denied the charges and claimed to be tried. 4. To bring home the guilt of the accused, prosecution examined P.Ws.1 to 16 and marked Exs.P.1 to P.14 besides M.Os.1 and 2. On behalf of defence, no oral evidence was adduced but contradictions of P.W.2 in Section 161 Cr.P.C. statement were marked as Exs.D.1 and D.2. 5. The learned Sessions Judge after appreciation of oral and documentary evidence particularly basing upon the evidence of direct eyewitnesses-P.W.1 and 2 convicted and sentenced the appellant- accused as aforementioned. 6. P.W.1 is the daughter of the deceased and eyewitness to the occurrence. She deposed before the Court regarding the fact that there was a quarrel between the deceased and accused on 17.10.2004 at 7.30 p.m. At that time the accused was in drunken condition. Herself and P.W.2 intervened and pacified the quarrel. Then the accused went outside and locked the door. On the next day morning, accused opened the door and again started quarreling with the deceased. The deceased shouted against the accused as to why he was torturing her. On that accused took a kerosene tin available in the house, poured kerosene over the body of the deceased and tried to lit fire. Then P.W.1 intervened and tried to avoid the same. Then the accused went outside, brought a match box and lit fire to the deceased. She further deposed that when she tried to put off the flames of the deceased, she also sustained injuries. Though she requested the accused to put off the flames on the deceased, he abused the deceased to die and left the place. 7. P.W.2, another daughter of the accused was also present at the place of occurrence. She was studying 9th standard at the time of deposing before the Court. She stated regarding the quarrel between the accused and the deceased on the previous night and the manner in which P.W.1 and herself tried to avoid the dispute between them. She also deposed regarding the incident on 18.10.2004. According to her, the deceased questioned the accused as to why he was continuously quarreling with her. On that, the accused took a kerosene tin available in the house, poured kerosene on the body of the deceased and lit fire to her. She further stated that P.W.1 tried to extinguish the fire and in the process she also sustained injuries. Both P.Ws.1 and 2 after that incident took the deceased to the hospital. P.W.3, the mother-in-law of the accused and mother of the deceased speaks about the earlier quarrel took place between the accused and deceased and she is not an eyewitness to the occurrence. P.W.4, a resident of the same locality deposed to the effect that the accused always used to quarrel with the deceased and she deposed that on the previous night, there was a quarrel between the accused and the deceased. She further deposed that on the next day morning, she found deceased fell down with burn injuries. She also spoke about the injuries sustained by P.W.1. She shifted the deceased and P.W.1 to the hospital. P.W.5, a resident of the same locality deposed on the similar lines that she heard the quarrel on the previous night and also on the next day in the morning and that she saw the deceased coming out with flames and herself and neighbours along with P.W.1 tried to extinguish the fire and in the process P.W.1 sustained burn injuries. At that time the accused abused the deceased to die and then ran away from that place. P.W.6 is the son of the accused and deceased, who was working at Bangaluru at the time of occurrence. He is not an eyewitness to the occurrence, but he deposed regarding the fact that the accused always used to quarrel with his mother-deceased. P.W.7 is a coolie in the nearby village. He was a witness to the recovery of M.O.1-kerosene tin and also some pieces of saree-M.O.2. He also signed in the observation report- Ex.P.1. P.W.8 is the magistrate who recorded the dying declaration of the deceased under Ex.P.3 on 18.10.2002 at 9.30 a.m. He deposed before the Court regarding the manner in which Ex.P.3 was recorded and he also informed the manner in which the formalities were observed prior to recording the dying declaration. He further deposed that in the said dying declaration-Ex.P.3 the deceased informed him that her husband-accused poured kerosene and set fire to her. P.W.9 is a resident of Gudur and she was present at the time of inquest held over the dead body of the deceased on 24.10.2004 at 11.30 a.m. and she has signed in Ex.P.4-inquest report. P.W.10 is the Civil Assistant Surgeon who conducted autopsy over the dead body of the deceased on 24.12.2004 at 2.00 p.m. He found the following injuries over the dead body of the deceased: “External examination:- Varying degrees of burns all over the body, except face and both legs. Internal examination:- Ribs normal both lungs congested on C/s heart all chambers empty. Stomach empty. Mucosa congested lever spleen and both kidneys congested. Uterous: Normal in size C/s congested. Scalp: covered with black hair. Skull: normal. Brain matter normal. Hyoid- intact.” He opined that the cause of death was due to extensive burns and the burn injuries are about 90%. He issued Ex.P.5 post-mortem certificate. 8. P.W.11 is Civil Assistant Surgeon, who examined P.W.1 on 18.10.2004 and he found the following injuries: “ Burn injuries present over the right side chest abdomen and right upper arm thigh and right leg with varying degrees.” He opined that the said injuries are simple in nature. Ex.P.6 is the wound certificate issued in connection with the treatment given to P.W.1. 9. P.W.12 is the Assistant Sub-Inspector of Police. On 18.10.2004 at 2.00 p.m. he received Ex.P.7 statement of the deceased recorded by the head constable along with Ex.P.8-hospital intimation. On the basis of Ex.P.7 statement given by the deceased, he registered a case in Crime No.281 of 2004 under Section 307 and 324 I.P.C. Ex.P.9 is the original F.I.R. and he took up investigation, rushed to the hospital, examined P.Ws.1 to 3 and also recorded the statement of the deceased as in Ex.P.10. Then he rushed to the scene of offence and secured the presence of mediators-P.W.7 and another and observed the scene and prepared Ex.P.1-observation report and recovered the material objects. 10. P.W.13 is the Circle Inspector of Police, who on receipt of death intimation under Ex.P.12 altered the section of law to 302 read with 34 I.P.C. and forwarded the same to the Magistrate. Ex.P.13 is the altered F.I.R. issued by him. Then he rushed to the Government Hospital, secured the presence of P.W.9 and others, held inquest over the dead body of the deceased and prepared inquest report-Ex.P.4. P.W.14 is the retired Head Constable, who recorded the statement of deceased under Ex.P.7 on the basis of intimation received by him under Ex.P.8. P.W.15 is the Inspector of Police, who took up further investigation and laid the charge sheet on 8.7.2005. P.W.16 is the doctor working in the hospital at Nellore. He was present when P.W.12 recorded Ex.P.7 statement of the deceased and he has certified that the patient was conscious and in a fit condition to give declaration. 11. Learned counsel for the appellant submitted that there are discrepancies in the evidence of P.Ws.1 and 2 and the dying declaration recorded by the Magistrate-P.W.8 under Ex.P.3. The doctor who gave a certificate with regard to the condition of the deceased to give declaration was not examined, which is fatal to the case of the prosecution. 12. On the other hand, learned Public Prosecutor submitted that the evidence adduced by the prosecution is cogent in nature and the case of the prosecution is supported by the eyewitnesses and also the dying declaration-Ex.P.3 recorded by P.W.8 and the statement under Ex.P.7. 13. We have perused the entire material brought on record and the findings of the learned Sessions Judge. 14. In this case, P.Ws.1 and 2, who are none other than the daughters of the deceased and accused, are the eyewitnesses to the occurrence. P.W.1 is an injured person in the course of the same transaction. The evidence adduced by P.Ws.1 and 2 is cogent in nature and consistent and it indicates clinchingly the motive and the manner in which the accused committed the crime. Their evidence is corroborative, highly probable and believable and though they were subjected to lengthy cross-examination, nothing contra was elicited to discredit their testimony. Apart from the said eyewitnesses, the declaration of the deceased under Ex.P.7 recorded by head constable-P.W.14 the deceased stated the manner in which the accused poured kerosene and lit fire to her. The said declaration is supported by Ex.P.3-dying declaration of the deceased recorded by P.W.8- Magistrate. There is no discrepancy or variation between the dying declaration recorded by Magistrate-P.W.8 and the statement recorded by head constable-P.W.14, which is treated as complaint. There is nothing on record to disbelieve the evidence of prosecution. Since we are of the opinion that the evidence of P.Ws.1 and 2 and the dying declarations clearly establish the case of the prosecution without any reasonable doubt, there is no need for us to appreciate the other evidence because that part of the evidence is to establish the motive and also the procedure followed during the course of investigation. Hence, we are of the view that the conviction and sentenced imposed on the accused-appellant cannot be interfered with. 15. In the result, the Criminal Appeal is dismissed. _______________ A. GOPAL REDDY. J _________________ RAJA ELANGO, J JULY 21, 2011 Tsr.