* THE HON'BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO + CRL.A.No.864 OF 2007 % Dated 24.12.2010 # Vadde Pallepu Sekhar ... APPELLANT V. $ State of A.P., rep.by Public Prosecutor, High Court, Hyderabad. ...RESPONDENT ! Counsel for the Appellant : Sri C.Padmanabha Reddy ^ Counsel for the Respondent : Public Prosecutor < Gist : > Head Note: ? Cases Referred: 1. A.I.R. 1958 Supreme Court 22 2. 2004 (2) ALT (CRL)571 (D.B.)(A.P.) 3. 2009(1) ALD (CRL)515 4. (1979)1 SCC 355 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.A.No.864 OF 2007 Date:24-12-2010 Between:- Vadde Pallepu Sekhar .. Appellant/Accused No.1. And State of A.P., rep.by Public Prosecutor, High Court, Hyderabad. .. Respondent JUDGMENT:- (per Hon’ble Sri Justice K.C.Bhanu) This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), is directed against the judgment, dated 21-06-2007, in Sessions Case No.218 of 2006 on the file of IV Additional Sessions Judge (Fast Track Court), Anantapur whereunder and whereby, the appellant/A-1 was found guilty of the offences punishable under Sections 498-A and 302 of the Indian Penal Code, 1860 (for short, “I.P.C.”) and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for three (3) months for the charge under Section 498-A I.P.C.; and to suffer imprisonment for life and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for one year for charge under Section 302 I.P.C. 2. The brief facts that are necessary for disposal of the prosecution case may be depicted as follows: P.W.4 is the father, P.W.5 is the paternal uncle and P.W.6 is the cousin brother of the deceased. The deceased was given in marriage to A-1. A-2 is her mother-in-law. At the time of marriage, four tulas of gold and cash of Rs.5,000/- was given towards dowry. Subsequently after the marriage, she joined her husband. As the deceased did not bring sufficient dowry, A-1 poured kerosene and set fire on her. Immediately, P.Ws.1 to 3 shifted the deceased to hospital. On 01-12- 2004, at about 4-30 p.m., the deceased was admitted in Casuality Ward of Government Hospital, Anantapur. P.W.16, Medical Officer, examined her and sent a medical admission intimation, Ex.P-31, to the police. On receiving the intimation, P.W.14, the then Police Constable, Out Post, Government General Hospital, recorded the statement of the deceased in between 5.45 p.m. and 6.15 p.m., which is marked as Ex.P-28. Subsequently, at 6.15 p.m., P.W.15, Judicial First Class Magistrate, also recorded her statement as in Ex.P-30, wherein she stated that as she did not get dowry, her husband, A-1, poured kerosene and set fire on her. On 01-12-2004, at 7.00 p.m., on receiving information, P.W.17, Head Constable, collected the statement of the deceased, Ex.P-28, and basing on it, he registered a case in Cr.No.91 of 2004 and issued F.I.R., Ex.P-32 to the Court and copies to all concerned. Then he visited the hospital and recorded statement of the deceased under Sec.161(3) Cr.P.C. He also recorded statements of P.Ws.1 to 6 under Section 161 Cr.P.C., which are marked as Exs.P-1, P-3, P-5, P-7, P-9 and P-11 respectively. He then visited the scene of offence and prepared an observation report in the presence of P.W.7, which is marked as Ex.P-33. Ex.P-34 is the rough sketch. On 02-12-2004, at 2.15 p.m. on receiving the death intimation, Ex.P-35, P.W.18, Assistant Sub Inspector of Police, altered the section of law and issued altered F.I.R., Ex.P-36, and sent requisition to the concerned Mandal Revenue Officer to hold inquest. Accordingly, on 03-12-2004, P.W.12, the then M.R.O., held inquest over the dead body, under Ex.P-23-inquest report. On 03.12.2004, on requisition, P.W.10, Professor in Forensic Medicine, Government Medical College, Anantapur, held autopsy over the dead body of the deceased and opined that the cause of death was due to shock as a result of burn injuries. Ex.P-20 is the post mortem report. On 13-12-2004, at about 2.00 p.m., while P.W.11-Deputy M.R.O. and P.W.13-Panchayat Secretary were present in M.R.O’s Office, Singanamala, A-1 went to the office and made an extra judicial confession. P.W.11 recorded his statement, which is marked as Ex.P- 21 and then along with his requisition on Ex.P-22, produced A-1 before P.W.19. P.W.19 arrested the accused and sent him for remand. After completion of investigation, the successor of P.W.19 filed the charge sheet. 3. The trial Court framed the following charges against the accused: “Charge No.1: That you A-1 and A-2 since the date of marriage of A-1 of you with one Bandaru Laxmidevi, six months prior to 01-12-2004 having resided at Akuledu village used to harass and ill-treat said Laxmidevi for the sake of additional dowry and tortured her mentally and physically and that you thereby committed an offence punishable u/sec.498(A) of Indian Penal Code and within my cognizance. Charge No.2: That you A-1 and A-2 at or about the 1st day of December, 2004 in between 3- 30 and 4.00 p.m. in your house at Akuledu village caused the death of Bandaru Laxmidevi, wife of A-1 of you by subjecting her to cruelty with your demand for additional dowry, by burns, within seven years of her marriage and that you thereby committed an offence punishable u/sec.304 (B) of Indian Penal Code and Section 3 and 4 of Dowry Prohibition Act and within my cognizance. Charge No.3: That you A-1 and A-2 on or about the same day, time, place and in the course of same transaction as mentioned in charge No.2 did commit murder by causing the death of Bandaru Laxmi Devi and thereby committed an offence punishable u/sec.302 of Indian Penal Code r/w.34 of Indian Penal Code and within my cognizance.” When the above charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined PWs.1 to 19 and got marked Exs.P-1 to P-37. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same and reported no evidence either oral or documentary. 6. The trial Court, accepting the two dying declarations, Exs.P-28, recorded by P.W.14, and Ex.P-30, recorded by P.W.15 came to the conclusion that it is the appellant/A-1 who poured kerosene on the deceased and set fire to her and therefore convicted and sentenced him as stated above, while acquitting A-2 of the charges leveled against him. Challenging the same, the present appeal is preferred by A-1. 7. The point for determination is: “Whether the prosecution proved its case beyond all reasonable doubt against A-1 of the offences punishable under Sections 498-A and 302 I.P.C and whether the judgment of the trial Court is correct, legal and proper?” 8. The learned senior Counsel Sri C.Padmanabha Reddy appearing for the appellant contended that the two dying declarations are inconsistent as to the cause of death, that in the first statement, the involvement of mother-in-law was also spoken to, by the deceased and that within half-an-hour thereafter, cryptic statement was given to P.W.15; that the time of recording Ex.P-28 was not stated, and therefore, it must have been fabricated subsequently to suit the case of the prosecution by the Head Constable after obtaining the thumb impression of the deceased on the blank paper; that after registration of the case, P.W.17 examined the deceased and recorded the statement under Section 161 (3) Cr.P.C. but that statement was not filed into the Court for the reason that it was not favourable to the case of prosecution; that by deliberate suppression of important document, an adverse inference can be drawn; that as the two dying declarations are inconsistent, it is not safe to place any reliance on them, that in all fairness the prosecution ought to have tendered the statement of deceased recorded by P.W.17, that as the third dying declaration has not been produced by the prosecution, the appellant is entitled benefit of doubt and that the deceased would not have given such an elaborate statement as in Ex.P-28, as immediately half an hour thereafter, she has given a cryptic statement and therefore, he prays to set aside the appeal. 9. On the other hand, the learned counsel representing the Public Prosecutor submitted that once Exs.P-28 and P-30 are proved to be true and trustworthy, a conviction can be based thereon, even without there being corroboration and that these two statements are very clear that this appellant/ A-1 poured kerosene and set fire to the deceased and therefore, the trial Court rightly placed an implicit reliance on the statements of deceased, Exs.P-28 and P-30, and there are absolutely no grounds to interfere with the conviction and sentence of the trial Court. 10. P.W.12 is the M.R.O. who conducted inquest on the dead body of deceased under Ex.P-22. The apparent cause of the death, as spoken to by the mediators, is the death due to burn injuries. 11. P.W.10 is the Doctor, who conducted post mortem on the body of deceased, and found the following injuries- “a)Antemortem superficial burnt injury are present over 1 head and neck below the level of chin. 2) Front and back of chest 3) Front and back of abdomen 4) Both upper limbs including palms excluding front of left shoulder 5) Both lower limbs including soles. About 91% of the body surface was burnt. The burns are 1st degree in nature involving supercusial layer of skin including cuticle. Base of the burns is red and inflamed and showing signs of vital reaction. b) A contution of 2 x 1 cm. is present at the out aspect of right eye-brow, blue in colour. It is caused due to hard and blunt impact. All visceral organ congested. Stomach contains 150 ml. of bile stained liquid with no suspicious smell, and mucose normal. Vagine admitting two fingers uterous non pregnant and not in menstruation.” The cause of the death as spoken to, by the doctor is shock due to the burn injuries. Ex.P-20 is the post mortem report issued by him. Practically, the evidence of P.W.10 and the recitals in Ex.P-20 remained unchallenged. Therefore, the homicidal nature of the death of the deceased is established. Now, it has to be seen whether the appellant/A-1 is the assailant of the deceased. 12. P.Ws.1 to 9, who are the close relations and material witnesses, did not support the case of the prosecution. The Public Prosecutor, in the trial Court cross-examined them, by taking leave of the Court, but nothing has been elicited in their evidence so as to connect the accused with the crime, except marking their statements recorded by the police under Section 161(3) Cr.P.C. There cannot be any dispute that the statements recorded by the police during the course of the investigation cannot be used for any other purpose except for contradicting the witnesses. 13. The entire case rests upon the two dying declarations, Exs.P-28 and P-30. There cannot be any dispute that a statement made by a person, oral or written, as to the cause of death or any of the circumstances resulting in her death, in case in which the death comes into question, is admissible under Section 32(1) of the Indian Evidence Act, 1872. The law is equally well settled that when once a dying declaration is found to be true, trustworthy and reliable and not an outcome of tutoring or prompting by the interested persons, it can be acted upon to base a conviction even without any corroboration. It has to be seen that whether the two dying declarations –Exs.P-28 and P- 30 are true and correct. On this aspect, it is pertinent to refer to a decision in Khushal Rao Vs. State of Bombay[1] wherein at para 16, it is held thus:- “On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. 14. Ex.P.28-Statement is recorded by P.W.14, relevant portion of which reads thus: “Afterwards at about 3:30 – 4:00 p.m. while I was weeping, my husband and mother-in-law said that no money will be received through me and it is better to get rid of me and it is better to get rid of me by killing. So saying my husband poured kerosene on me and lit fire and said ‘Die’ and both of them went away”. 15. As seen from the statement, it is an elaborate statement said to have been given by the deceased to P.W.14. It reveals about the performing of marriage of deceased with A-1, giving of dowry, joining her husband and thereafter harassment of deceased by the accused and in-laws to bring additional dowry. It is also clear from it that a panchayat was held prior to the incident, an altercation took place with regard to the payment of dowry and in that altercation, the accused beat the deceased and the parents agreed to pay certain amount after harvesting the crop, and that at the time of incident, both A-1 and A-2 stated that if no money is received through her, it is better to get rid of her and it is better to get rid of her by killing, and so saying, her husband poured kerosene and lit fire and said “die” and both of them went away. 16. Half-an-hour after recording of Ex.P-28, on the requisition received from the hospital, P.W.15-Magistrate recorded Ex.P-30 statement at about 6.30 p.m. relevant portion of which reads as follows: “Q. How did you receive the burns on the body? Ans: As I did not get dowry, my husband Sekhar poured kerosene and set fire.” 17. The dying declaration recorded by the Magistrate is very cryptic and does not contain any details except saying that her husband poured kerosene and set fire. Presence of the mother-in-law is not spoken to, by the deceased in the said dying declaration. Similarly, the prior disputes between the deceased and her husband and holding of panchayat are not at all spoken to by the deceased. Therefore, when a cryptic dying declaration was recorded preceded by an elaborate dying declaration, it is doubtful on which dying declaration, the Court can place an implicit reliance. Where there were material contradictions in the two dying declarations made in a bride-burning case, the declarations can be said to be not reliable. The principle on which the dying declarations are admitted in evidence is that a person will not meet his maker with a lie in his mouth. Ordinarily a dying declaration is entitled to great weight. The Court has to satisfy itself that the dying declarations are of such a nature as to inspire full confidence in the Court in its correctness. 18. Furthermore, admittedly, P.W.17, after registration of the case, went to the hospital and recorded the statement of the deceased under Section 161(3) Cr.P.C. during the course of investigation. Though it is a statement recorded under Section 161 Cr.P.C., Section 162 of Cr.P.C. reads that nothing in this section shall be deemed to apply to any statement falls under Section 32(1) of Evidence Act. In other words, Section 162(2) Cr.P.C. in express terms excludes from its purview statements falling under Section 32(1) of Evidence Act. So the statement of the deceased to the police is admissible as a dying declaration when such statement relates to cause of death or any circumstances resulting in her death. P.W.17 is the proper person to give an explanation for not filing the statement of deceased recorded under Section 161(3) Cr.P.C. No such explanation was given by P.W.17. The suppression of the statement recorded from the deceased by P.W.17 is nothing but withholding the important evidence. On this aspect, learned counsel for the appellant placed reliance on the decision of this Court reported in Harijana Mulinti Bhushanna and others Vs. State of A.P., rep.by Public Prosecutor[2], wherein at para 24, it is held thus: “There cannot be any doubt that a dying declaration is a substantive piece of evidence. If a dying declaration is found true and voluntary, conviction can be maintained without any further corroborative evidence. When such is the law, P. W. 14 ought to have produced the dying declaration recorded by him. No explanation was offered by him for withholding such important document. As per illustration (g) to Section 114 of the evidence Act, the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. When not so produced and there is no satisfactory explanation for such non-production, Court can be asked to draw adverse inference against the party not producing it. In this case also, adverse inference can be drawn against the prosecution for non-production of the dying declaration of Benjamin. But, adverse inference can be drawn only with regard to the attack made on Benjamin and not on danam, because Benjamin was not present at the time Danam was attacked, as admitted by the eyewitnesses.” He also placed reliance on the decision of this Court reported in A.Savithramma and another Vs. State of Andhra Pradesh[3], wherein at para 23, it is held thus: “From the principles summarized by the Apex Court in Pannerselvam (2008 (3) ALT (Crl.) 335 (SC), we have to consider whether the dying declaration recorded by the Executive magistrate inspires the confidence of the court to convict the accused. PW12-doctor admitted that close relatives of the deceased are very much present before PW10-MRO come to the hospital for recording dying declaration, whereas PW10 stated that outside the premises of the hospital he found some people, may be the relatives of the deceased, but nowhere he called upon the relatives to leave the place to record the dying declaration in their absence. Therefore, it can safely be presumed that the dying declaration made by the deceased was a result of tutoring by relatives and PW1, who are present by the side of the deceased, and alone cannot form basis for conviction of the accused unless corroborated with the other evidence. Further, when the earliest statement recorded by PW13 has not been produced by the prosecution, the accused was denied a fair trial and adverse inference has to be drawn against the prosecution under section 114, illustration (g) of the Indian evidence Act”. In view of the above two decisions, it is clear that when an important document has been suppressed without there being any explanation, an adverse inference can be drawn under Section 114(g) of the Indian Evidence Act, 1872. A presumption can be raised from willful withholding or suppression of useful evidence naturally leads to the inference that the evidence if produced would go against the prosecution who withholds it. If the prosecution wrongfully withholds evidence, every presumption to its disadvantage consistent with the facts admitted or proved will be adopted. Non-production of statement of deceased under Section 161(3) Cr.P.C. gives rise to a presumption against the prosecution. 19. It is needless to observe that it is imperative duty of public prosecutor in charge of the case to tender the statement of deceased under Section 161(3) Cr.P.C. if any and mark the same in accordance with law. Whether such statement is favourable to the prosecution or not, it must be marked. Thereafter it is for the Court to test the reliability or otherwise of the dying declarations. Similarly, Court shall insist for production of dying declarations recorded under Section 161(3) Cr.P.C. and see that it is marked as an exhibit. 20. The Judge is not a mere spectator to see the game in the field. The function of Judge is to see that justice is done between the parties. Requiring the production of evidence is to get all facts necessary for a proper decision. 21. There cannot be any dispute that when there are more than two dying declarations, there must be consistency with regard to all the dying declarations. If one dying declaration is inconsistent with the other, no implicit reliance can be placed on the dying declarations. In view of the fact that the two dying declarations are not consistent on material particulars and the third dying declaration has been suppressed by the prosecution, in such circumstances, the two dying declarations require corroboration. There is no such corroboration. Therefore, this aspect of the case has not been considered by the trial Court in a right perspective. Hence, the impugned judgment is liable to be set aside. 22. There cannot be any dispute that where circumstances of the prosecution case are susceptible of two equally possible inferences, the Court should accept that inference which favours the accused rather than an inference which goes in favour of the prosecution. On this aspect it is apposite to refer to a decision in K.Gopal Reddy Vs. State of A.P.[4], wherein at para 9, it is held thus: “The principles are now well settled. At one time it was thought that an order of acquittal could be set aside for “substantial and compelling reasons” only and Courts used to launch on a search to discover those “substantial and compelling reasons”. However, the ‘formulae’ of “substantial and compelling reasons”, “good and sufficiently cogent reasons” and “strong reasons” and the search for them were abandoned as a result of the pronouncement of this Court in Sanwat Singh v. State of Rajasthan, (AIR 1961 SC 715). In Sanwat Singh’s case, this Court harked back to the principles enunciated by the Privy Council in Sheo Swarup v. Emperor(61 Ind App 398):(AIR 1934 PC 227 (2)), and reaffirmed those principles. After Sanwat Singh v. State of Rajasthan this Court has consistently recognised the right of the appellate court to review the entire evidence and to come to its own conclusion bearing in mind the considerations mentioned by the Privy Council in Sheo Swarup’s case. Occasionally phrases like ‘manifestly illegal’, ‘grossly unjust’, have been used to describe the orders of acquittal which warrant interference.