THE HON’BLE SRI JUSTICE V.ESWARAIAH & THE HON’BLE SRI JUSTICE K.G.SHANKAR <+ CRIMINAL APPEAL No.723 of 2007 % FRIDAY, THE TWENTY FOURTH DAY OF DECEMBER, TWO THOUSAN AND TEN # Kalagatla Hasanaiah @ Hasan ….Appellant/Accused Versus $ The State of A.P., Rep.by its Public Prosecutor, High Court of A.P. Hyderabad …..Respondent ! Counsel for the Appellant : Smt.A.GAYATRI REDDY (LEGAL AID) ^ Counsel for the respondents : PUBLIC PROSECUTOR < Gist : > Head Note: ? Cases Referred: 1. 2004 (2) ALT (Crl) 571 (D.B) (A.P) 2. 2008 (1) ALD (Crl) 316 (SC) 3. 2010 (1) ALD (Crl) 397 (SC) IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY THE TWENTY FOURTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE K.G.SHANKAR CRIMINAL APPEAL No.723 of 2007 Between: Kalagatla Hasanaiah @ Hasan .....APPELLANT/ACCUSED AND The State of A.P. rep.by its Public Prosecutor, High Court of A.P. Hyderabad .....RESPONDENT/COMPLAINANT The Court made the following: THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON'BLE SRI JUSTICE K.G.SHANKAR CRIMINAL APPEAL No.723 of 2007 JUDGMENT: (per Hon’ble Sri Justice V.Eswaraiah) Sole accused filed this appeal against the judgment in S.C.No.220 of 2005 on the file of the VI Additional District & Sessions Judge, (Fast Track Court) Markapur, dated 21.02.2007, under which the accused was found guilty for the offence punishable under Sec.302 of the Indian Penal Code, 1860 (in short ‘IPC’) for committing double murder of his wife and daughter, aged two years and was sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to suffer rigorous imprisonment for one year. 2. The substance of the charge against the appellant/accused is that on 14.03.2004 at about 8.30 p.m. at his house situated at Islampeta of Komarole village & mandal of Prakasam District, he committed murder of his daughter by name Kalagatla Moula Bee (hereinafter referred to as ‘D1’) and his wife by name Kalagatla Khasim Bee (hereinafter referred to as ‘D2’) by sprinkling kerosene and lit fire with match stick and bolted the door from outside keeping both the deceased inside the house. 3. The brief facts of the prosecution case are as follows: The accused married the Deceased No.2 four years prior to her death. D2 is resident of Kalasapadu village of Kadapa District. After the marriage, the accused and D2 were blessed with D1 daughter. In the house, along with the accused, D2, D1 and the father of the accused are residing. The accused used to drink everyday and used to beat his wife D2. On 14.03.2004 at 8.30 p.m. the accused returned to the house in drunken state, carrying a liquor bottle and mutton. D2 showed the liquor bottle to her daughter D1 and then the accused became wild and quarreled with his wife D2 and poured kerosene available in the house on her and set fire to her (D2) and went away. The flames came out suddenly and D1 and D2 sustained burn injuries. D1 died on the spot. D2 raised cries and came out of the house and fell on the water tub to put off the flames. On hearing the cries of D2 and on seeing the flames from the house of the accused, the neighbours rushed to the scene and on seeing the neighbours, the accused flew away. The neighbours admitted D2 in the Government Hospital, Komarole and from there she was shifted to Government Hospital, Giddalur, where she succumbed to the injuries on 16.03.2004 at 2.30 p.m. while undergoing treatment. 4. PW 9, the Sub-Inspector of Police, Komarole P.S received the information from the Government Hospital, Komarole on 14.03.2004 and went there and recorded the statement of D2 under Ex.P8, based on which a case in Cr.No.15/2004 was registered against the accused for the offence punishable under Sec.302 and 307 of IPC. Ex.P9 is the First Information Report (for short”FIR”). PW 10-the Inspector of Police, Giddalur received the FIR on 15.04.2004 at 5.15 a.m. and immediately he proceeded to the Government Hospital, Giddalur and recorded the statement of D2 under Sec.161 of Code of Criminal Procedure (for short “Cr.P.C”). PW 10 proceeded to the scene of offence and conducted the observation of the scene of offence panchanama in the presence of PW 7 and another. Ex.P10 is the rough sketch of the scene of offence. He found the dead body of D1 lying on a cot with burn injuries. He conducted inquest over the dead body of D1 in the presence of PW 7 and another. Ex.P6 is the inquest report of D1. After inquest, he sent the dead body of D1 for post mortem examination. 5. PW 11, the Assistant Civil Surgeon, Government Hospital, Giddalur treated D2 and sent requisition to Judicial Magistrate of First Class, Giddalur to record the declaration of D2. On 14.03.2004 at 11.30 p.m. PW 11 endorsed on the dying declaration of D2. Ex.P18 is his endorsement. PW 12, the Judicial Magistrate of First Class, Giddalur recorded the dying declaration of D2 on 14/15.03.2004 at 12.15 a.m. and completed the proceedings by 12.40 a.m. Ex.P20 is the dying declaration of D2. D2 died on 16.03.2004 and inquest was conducted by PW 8 the Mandal Revenue Officer on the dead body of D2 at mortuary room. Ex.P7 is the inquest report of D2. 6. PW 14, the Civil Assistant Surgeon, Community Health Centre, Giddalur conducted autopsy over the dead body of D1 on 15.03.2004 at 3.30 p.m. and opined that the deceased No.1 (child) would appear to have died of shock and hemorrhage due to 100% burns and issued Ex.P22 post mortem report of D1. 7. PW 13, the Deputy Civil Surgeon, Government Hospital, Giddalur conducted autopsy over the dead body of D2 on 17.03.2004 at 2.30 p.m. and opined that the deceased No.2 (wife) would appear to have died of shock and hemorrhage due to mucosal ulceration due to deep burns. Ex.P21 is the post mortem report of D2. 8. PW 10 the Inspector of Police arrested the accused on 05.05.2004 and filed charge sheet. 9. In order to establish the guilt of the accused, on behalf of the prosecution PWs 1 to 14 were examined and Exs.P1 to P22 were marked. On behalf of accused no oral or documentary evidence was adduced. 10. In the instant case, there is no eyewitness and all neighbours PWs 2 to 6, said to have been present immediately after the incident, turned hostile. The case rests upon only on the dying declarations made by D2 before PWs 9 and 12 under Exs.P8 and P20. 11. The learned Sessions Judge held that the entire case of the prosecution revolves around Exs.P8 and P20 dying declarations recorded by PW 9 SI of Police and PW 12 Judicial Magistrate of First Class, Giddalur. As there was no direct evidence and even the neighbours of the locality PWs 2 to 6 turned hostile, the learned Sessions Judge held that Exs.P8 and P20 dying declarations of the Deceased No.2 are true and voluntary, are consistent and explanative to each other and inspires confidence, and basing on the same, convicted the accused holding that no other corroboration is required. 12. Smt.A.Gayatri Reddy, the learned counsel appointed through legal aid submitted that PWs 2 to 6, the neighbours of the accused and the deceased did not support the case of the prosecution, that they turned hostile, that Exs.P8 and P20 dying declarations, said to have been recorded by PW 9 and PW 12 are at variance and there are many contradictions, and that therefore, the said dying declarations create doubt and do not inspire any confidence and cannot be said that they are voluntarily made by the deceased No.2 in a fit state of mental condition. She further submitted that the last dying declaration recorded by PW 10, the Inspector of Police was not produced and therefore, the accused is entitled to be acquitted for non-furnishing the third dying declaration, said to have been recorded by PW 10. 13. Heard both the counsel. 14. PW 1 is the mother of Deceased No.2 and resident of Kalasapadu of Kadapa District, whereas the accused and deceased are residents of Komarole village of Prakasam District. She stated that the accused used to consume alcohol and used to come to the house at late nights and also used to beat D2. He did not provide even food and clothing to D2 properly and used to bring D2 to her house and used to keep there for days together. After coming to know of the incident, she proceeded to Komarole. By then, D2 was admitted in the Government Hospital, Giddalur. D1 already died and her body was found with burn injuries at the house of the accused. On the third day of the incident, D2 succumbed to injuries in the hospital while undergoing treatment. She did not enquire D2 at the hospital as to what happened. It is stated that she was not examined by the police. In the cross examination, she stated that she came to know about the incident at mid-night of the date of the incident and she did not know what happened to D2 on that day. Prior to the marriage they were aware of the accused. She stated that the accused used to consume alcohol and D2 was not suffering from any chronic diseases. D2 received burn injuries all over the body and she was not in a position to speak by the time of her visiting the Government Hospital, Giddaluru. She denied the suggestion that the deceased No.2 received burn injuries by accident while cooking food and that the accused did not commit any offence. 15. The neghbours of the accused and deceased PWs 2 to 6 did not support the case of the prosecution and they turned hostile. They stated that the accused was innocent and he was not having any vices and that they did not know what happened. 16. PW 7 is the Panch witness for the inquest reports of D1 and D2 under Exs.P6 and P7 held by PW 8-Mandal Revenue Officer. 17. PW 9 is the Sub-Inspector of Police who recorded Ex.P8 statement of D2 on 14.03.2004 at about 8.30 p.m. at Primary Health Centre, Komarole. 18. The entire case of the prosecution rests on Exs.P8 and P20 dying declarations. The gist of Ex.P8 is that D2 is aged 23 years, caste-Dudekula, and profession-cooly work. Her statement was recorded on 14.03.2004 at 9.30 p.m. She stated that on 14.03.2004 night her husband i.e. accused came to the house in drunken state along with one drink bottle and mutton. As she had shown the bottle to their daughter D1-Moula Bee, the accused became wild and quarreled with her and at 8.30 p.m. beat her and poured kerosene available in the house on her and in the house and set fire with match stick and went away. The flames errupted all of a sudden and the house was burnt. In those flames, her daughter Moula Bee died. Raising cries she came out of the house and jumped into the water tub to put off the flames. Then the neighbours came and admitted her in the Government Hospital. Recording the statement was completed by 10 p.m. and a case in Cr.No.15/2004 was registered against the accused for the offence under Sec.302 and 307 IPC under Ex.P9 FIR. 19. Ex.P20 dying declaration was recorded by PW 12, the Judicial Magistrate of First Class, Giddaluru. An endorsement was made by PW 11 Doctor in the beginning and the ending of Ex.P20 stating that the patient was conscious and coherent while recording the statement. The gist of Ex.P20 is that her husband i.e. accused daily used to consume alcohol and used to come to the house in drunken state. On the date of incident also, as he asked for brandy, she went to the brandy shop and brought one bottle and gave it to her husband. On his request, she prepared “sangati” and gave it to him. After consuming brandy and after eating “sangati” he beat her and poured kerosene on her and lit fire and went out of the house keeping her and her daughter inside the house and bolted the door from outside the house. She received burn injuries all over the body. Her daughter was burnt and died at the spot. She further stated that along with her, her mother-in-law and father-in-law are residing in the same house. About two days back her mother-in-law went to Suddapalli with a view to see the family of her daughter. Her father-in-law went to Komarole village. With the burn injuries, she raised cries and the neighbours came there and admitted her in the Government Hospital. Her husband i.e. accused escaped from the house. She stated that her husband came at about 9 p.m. and picked up quarrel in a drunken stage and at 10 p.m. he poured kerosene on her and set fire to her. As her both hands were burnt, the Judicial Magistrate of First Class, Giddalur obtained the impression of the greater toe of her right leg. 20. PW 13, the Deputy Civil Surgeon, Government Hospital, Giddaluru, who conducted post mortem examination over the dead body of D2 at 2.30 p.m. on 17.03.2004 stated that the deceased No.2 received 80% of burns. 21. The questions that arise for consideration in this appeal are: 1. Whether the variation between two dying declarations is trivial in nature and explanatory with each other or substantially different. 2. Whether the third dying declaration said to have been recorded by PW 10 Inspector of Police leads to any adverse inference if it was favourable to the accused. 22. As per the version of Ex.P8 dying declaration, the accused came along with brandy bottle and mutton, and as D2 had shown the brandy bottle to their daughter-D1, the accused became wild and quarreled with her and poured kerosene and lit fire and fled away. To put off the flames, she came out of the house raising cries and jumped into the water tub. But according to the second dying declaration Ex.P20, at the request of her husband, she brought the brandy bottle and gave it to him. At the request of the accused, she also prepared Sangati and after consuming brandy and eating Sangati, he poured kerosene and lit fire and closed the doors from outside and went away. She then raised cries, and thereafter the neighbours came and admitted her in the hospital. 23. The variation between the two dying declarations is that the husband came with brandy bottle and mutton as per Ex.P8, but as per Ex.P20, she herself purchased the brandy bottle and gave it to him and prepared Sangati but not the mutton. As per Ex.P8 dying declaration, she herself went out of the house and fell into the water tub to put off the flames, but as per Ex.P20 dying declaration, the accused/husband closed the doors from outside and went away, but how she came out of the house is not stated. The prosecution case is that the neighbours unbolted the door and rescued D2 and immediately shifted her to the Government Hospital. Thus, there is a variance between the two dying declarations. Therefore, the version of the deceased No.2 as per her first statement that she herself came out of the house and fell into the water tub to put off the flames is quite contrary to the second statement under Ex.P20 where she stated that the husband bolted the doors from outside, that she raised cries and that neighbours came and rescued her. 24. It is further to be noticed that neither the Doctor PW 11 who made Ex.P18 endorsement stated that the patient was conscious and coherent while recording the statement nor the Judicial Magistrate of First Class PW 12 who recorded Ex.P20 stated anything about her mental condition/fitness to make the statement. The other anomaly is that according to the prosecution, PW 10 the Inspector of Police who received the FIR immediately rushed to the Government hospital and recorded the statement of D2 and that statement was not furnished to the accused and therefore, it is the case of the accused that the third statement said to have been recorded by PW 10 Investigating Officer might be favourable in favour of the accused and therefore, the prosecution suppressed the said statement. 25. We have considered the submissions made by the counsel appearing for the accused as well as the learned Public Prosecutor on the question of non-furnishing of the statement under Sec.161 Cr.P.C. recorded by PW 10 to the accused. The statement recorded under Sec.161 Cr.P.C by PW 10 becomes a relevant statement under Sec.32 of the Indian Evidence Act when it relates to the cause of death. The third statement made before PW 10 police officer would also become a dying declaration when the said statement was made by D2 as to the cause of her death, and such statement would be relevant to prove the guilt of the accused. Therefore, the destruction or non- production of the said statement and failing to furnish the copy of the said statement prejudices the case of the accused. Failure to produce the said dying declaration creates a doubt that it would be unfavourable to the case of the prosecution if produced. As such, the non-furnishing of the third statement of the D2 recorded by PW 10 under Sec.161 Cr.P.C which becomes the dying declaration causes prejudice to the accused. 26. In the case on hand, the statement suppressed is not a mere statement recorded under Sec.161 Cr.P.C but it is a dying declaration as D2 died subsequently. The dying declaration is a substantial piece of evidence. If dying declaration is found true and voluntary, conviction can be maintained without any further corroborative evidence. When such is the law, PW 10 ought to have produced the dying declaration recorded by him. No explanation was offered by him for withholding such an important document. As per illustration (g) to Sec.114 of the Evidence Act, the evidence which could be and is not produced would be presumed to be unfavourable to the persons who withholds it, if produced. When not so produced and there is no statutory explanation, for such non-production, Court can be asked to draw adverse inference against the party not producing it. In this case, adverse inference can be drawn against the prosecution for non-production of the third dying declaration of D2. Reliance is placed on the judgment of this Court in the case of Harijana Mulinte Bhushanna vs. State of A.P.[1] and the judgments of the Supreme Court in the cases of Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, A.P. (Supreme Court)[2] and State of Andhra Pradesh v. P.Khaja Hussaian[3]. 27. In the instant case, it is difficult to sustain the conviction solely based on the two dying declarations which are also at variance, more so, when the third dying declaration is suppressed and not furnished. 28. Therefore, we are not satisfied that the prosecution has proved its case against the appellant/accused beyond reasonable doubt. The appellant is entitled to the benefit of doubt. We, therefore, allowed this appeal and acquit the appellant/accused of the charges leveled against him. The appellant/accused is, therefore, directed to be released forthwith, provided he is not required in connection with any other case or cases. ________________ V.ESWARAIAH,J ________________ K.G.SHANKAR,J Dated: 24.12.2010 Dsr Note: LR copy be marked B/o Dsr [1] 2004 (2) ALT (Crl) 571 (D.B) (A.P) [2] 2008(1) ALD (Crl.) 316 (SC) [3] 2010(1)ALD (Crl.) 397 (SC)