THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO DATED: 19-07-2011 CRIMINAL APPEAL No. 1639 OF 2007 Between: Bandikindi Shiva Ramulu ..... APPELLANT AND The State of A.P, rep., by its Public Prosecutor, High Court of A.P., Hyderabad .....RESPONDENT THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 1639 OF 2007 JUDGMENT: (Per the Hon’ble Sri Justice Raja Elango) The appellant – accused who was tried for the offences punishable under Sections 302 and 498-A IPC in S.C No. 158 of 2006 and convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2000/-, in default to suffer rigorous imprisonment for two months for the offence under Section 302 IPC and to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for one month for the offence under Section 498-A IPC by the learned VI Additional District and Sessions Judge (Fast Track Court), Vikarabad, Ranga Reddy District vide judgment dated 03-10-2007, preferred this appeal challenging the conviction and sentence recorded against him. The prosecution story, as unfolded during the course of trial, briefly stated, is as under: PW 1 is the father of Shiva Leela (hereinafter referred to as the deceased). The marriage between the accused and the deceased took place about eight years prior to her death and at the time of marriage, PW 1 gave two tulas of gold and 15 tulas of silver besides cloths. They were blessed with two male children. After the marriage, the accused and his sister used to harass the deceased demanding to get more dowry and beat her and send her to the house of PW 1 and he in turn used to send back the deceased. On 27-03-2006 night at about 10.00 PM when the deceased and her sister-in-law were exchanging hot words, the accused came and saying that he will get rid of the trouble went inside the house and picked up kerosene oil and poured on the deceased and set her ablaze. While undergoing treatment at Osmania Hospital, the deceased died on 02-04-2006 at about 4.00 PM. Basing on the complaint given by PW 1 on 03-04-2006, PW 12 – Head Constable, P.S Doma, registered a case in Crime No.29 of 2006 under Section 304-B IPC and issued F.I.R Ex.P-7. He examined and recorded the statement of PW 1 and proceeded to Osmania Hospital mortuary, examined the body of the deceased and found 30% burns. PW 12 secured the presence of PWs 9 and 10 and examined PWs 2 and 3 and conducted inquest under Ex.P-4 on 03-04-2006 and sent a requisition for post mortem examination of the deceased. PW 14 – Tutor in the Department of Forensic Medicine, Osmania Medical College conducted autopsy over the dead body of the deceased and issued Ex.P-10 post mortem report opining that the cause of the death was due to burns. PW 15 – Sub Inspector of Police, P.S Doma examined and recorded the statements of PWs 4, 5 and 6. PW 16 – Inspector of Police, Parigi Circle of Ranga Reddy District took over further investigation and arrested the accused on 10-08-2006 and in pursuance of the confession made by the accused, he seized plastic kerosene tin MO – 1 under Ex.P-5. After receiving all the relevant documents and on completion of investigation, he filed the charge sheet before the learned Judicial Magistrate of First Class, Parigi who registered it as PRC No. 24 of 2006 and later committed to the Court of Sessions. On committal, the learned District and Sessions Judge, Ranga Reddy District registered the same as S.C No. 158 of 2006 and made over to the learned VI Additional Sessions Judge, Ranga Reddy District at Vikarabad who framed the charges against the accused for the offences under Sections 302 and 498-A IPC, read over and explained the same to them. The accused pleaded not guilty and claimed to be tried. To substantiate the guilt of the accused, the prosecution examined PWs 1 to 16 and marked Exs.P-1 to P-13 and produced MO 1. After closure of the prosecution’s side evidence, the appellant – accused was examined under Section 313 Cr.P.C with regard to the incriminating circumstances and the evidence appearing against him to which he stated that he never killed his wife and she herself set fire and committed suicide as he did not agree to shift the family to her parents village. He further stated that he has no defence evidence, but got marked Exs.D-1 to D-6 on his behalf. The learned Sessions Judge accepting the evidence adduced by the prosecution found that the appellant – accused is the person who has poured kerosene on the body of the deceased on the incident day in his house and set her ablaze and that the deceased died due to the burn injuries received by her and, therefore, he is guilty for the offences punishable under Sections 498-A and 302 IPC and convicted and sentenced him to imprisonment as aforestated. Questioning the same, the present appeal is filed by the appellant – accused. The learned counsel for the appellant contends that this is a case of suicide and there is no evidence to show that the case falls under Section 302 IPC. According to the learned counsel, the incident had taken place on 27-03-2006, but complaint was lodged by PW 1 on 03-04-3006 for which there is no satisfactory explanation which clearly shows that the story of the prosecution is an after thought. Thus arguing he prays that the appeal be allowed. Per contra, the learned Public Prosecutor supported the impugned judgment convicting the appellant – accused. The point that arises for consideration is whether the prosecution is able to bring home the guilt of the accused beyond all reasonable doubt and the conviction and sentence recorded against the appellant – accused are liable to be set aside or modified? PW 1, the father of the deceased who set the criminal law into motion by lodging complaint Ex.P-1 stated that the deceased and the accused married and lived together. During their matrimonial life, there was harassment by the accused for payment of additional dowry. On 28-03-2006, he received information that his daughter was admitted in the hospital on which he visited the hospital and after the death of the deceased, he lodged the complaint on 03-04-2006. PW 2 who is the wife of PW 1 also stated the same before the Court. PW 3 who is also related to PW 1 stated that on information by the neighbours of the deceased, he went to the house of the accused and that the deceased was taken to the hospital for treatment. He further stated that his enquiry revealed that the accused admitted the deceased in the hospital. PW 4 who is also a relative of PW 1 deposed on the same lines. PW 5 speaks about the earlier dispute between the deceased and the accused. PW 6 who is not an eyewitness also speaks about the earlier dispute between the deceased and the accused. PW 7 is the person who conducted panchayat earlier on the request of PW 1 to settle the disputes between the deceased and the accused. PW 8 is also from the same village who knows PWs 1 and 2. He also participated in the pachayat and advised the accused and the deceased to live amicably. PWs 9 and 10 participated in the inquest and signed the inquest report. PW 11 is a witness to the recording of confession and recovery of one plastic can MO 1. PW 12 is the Head Constable of Police Station Doma who received information from PW 1 and registered a case for an offence punishable under Section 304-B IPC in Crime No.26 of 2006 on 03-04-2006. PW 13 is the V Metropolitan Magistrate at Secunderabad who recorded the statement of the deceased which is marked as Ex.P-9. She deposed that she recorded the dying declaration of the deceased after the duty doctor had certified that the patient is conscious and coherent to give her statement. PW 14 is the doctor who conducted post mortem examination of the deceased and he opined that the deceased died due to burn injuries and as per his evidence, the deceased sustained 30% mixed flame burns infected on face, neck, chest, in front of right arm, both axilla, back of right shoulder and between shoulder blades and scale bar eyebrows partly burn. PW 15 is the Sub Inspector of Police, Parigi who took up investigation on the basis of Crime No. 26 of 2006 registered by PW 12, the Head Constable. He altered section of law from Section 304-B IPC to Sections 498-A and 306 IPC and examined the witnesses and recorded their statements. PW 16 who is the Inspector of Police, Parigi further investigated the matter and he felt that it is a case of death due to burn injuries, verified whether any dying declaration is recorded and after a lapse of four or five months he could be able to trace the dying declaration recorded by the Magistrate PW 13 and on the basis of the said dying declaration, he altered the section of law to Sections 498-A and 302 IPC. After completion of the investigation, he filed the charge sheet before the Court. The learned Sessions Judge convicted the accused based on the circumstantial evidence and Ex.P-9 dying declaration recorded by the Magistrate. For better appreciation, we reproduce the relevant portion of the dying declaration: “My husband beat twice or thrice and I state to die then he poured kerosene on me lit fire with match stick due to which I sustained burns all over my body. My sister-in-law poured water after extinguishing flames so may persons gathered. All of them abused him he was in the house and rubbed with gunny bag.” PW 2 stated that through one Narsimulu who is the neighbour of the accused, she came to know that the deceased committed suicide by setting fire by herself. The same is corroborated by PW 3 who stated that his sister set fire herself and was admitted in the hospital. Again the said version is supported by PW 4 who stated that the accused admitted the deceased in the hospital and he was informed by the neighbours that the deceased attempted to commit suicide. A perusal of the entire evidence and more particularly the evidence of PWs 2, 3 and 4 and the dying declaration, creates a doubt in the mind of this Court whether the case of the prosecution is true that it is a case of murder. The evidence adduced by PWs 2, 3 and 4 is supported by the evidence of PW 12 Head Constable who recorded the inquest report. He admits that even though he registered a case under Section 304-B IPC, in Ex.P-4 it is mentioned that the deceased died due to suicide by pouring kerosene on her body. PW 15 who is the Sub Inspector of Police who took up investigation altered the section of law from Section 304-B to Sections 498-A and 306 IPC. He also stated that the reason for such alteration is that his investigation revealed that the deceased having disgusted with her life committed suicide by setting fire in her house in Bompally Village. PW 16 who further altered the section of law to Section 302 IPC on the basis of the dying declaration also stated in the chief examination itself that his investigation revealed that on 27-03-2006 the deceased refused to wake up from sleep and failed to serve dinner to the accused. On that, the accused due to anger beat the deceased with hands due to which the deceased poured kerosene from the lamp available in the place and tried to set fire to her. Aggrieved over the same, the accused brought a kerosene tin and poured kerosene and set fire to the deceased. On an appreciation of the above stated evidence, it is clear that at the first instance the deceased herself attempted to commit suicide by pouring kerosene. Even though in the dying declaration Ex.P-9 she stated that her husband poured kerosene and lit fire, in the same dying declaration she also stated that her husband tried to extinguish the fire by using gunny bags along with her sister-in-law. Further, the PW 12 the Head Constable, PW 14 the Sub Inspector of Police and PW 16 the Inspector of Police those who investigated into the matter first registered case under Section 304-B IPC, but subsequently altered to Sections 498-A and 306 IPC and then again altered to Section 302 IPC. That apart, PW 1 lodged complaint on 03-04-2006 whereas the offence took place on 27-03- 2006. There is no explanation as to why there is inordinate delay in lodging the complaint. If it is a case of attempt to murder, nothing prevented PWs 1, 2 and 3 who are close relatives of the deceased from lodging complaint with the police on that day itself. The delay in lodging the complaint clearly indicates that there is no intention for the accused to commit any crime and that it is not the accused who has committed the crime. Hence, for the reasons stated above, we are of the view that due to quarrel between herself and the accused, the deceased attempted to commit suicide and thereby she sustained 30% of burn injuries. The said fact also clearly indicates that if the accused poured kerosene again from a kerosene tin, the injuries sustained by the deceased would have been very serious in nature and another theory that the deceased herself poured kerosene from the lamp available is more probable because of the nature of injuries sustained by her. So, we are of the view that the prosecution has not proved the case beyond all reasonable doubt. The case on hand is the one under Section 302 IPC and in the absence of any clinching evidence to indicate that the accused committed the murder of the deceased, merely because the accused was present at the place of occurrence cannot be a ground to convict him. In the circumstances, we are inclined to interfere with the judgment of the trial Court. In the result, the criminal appeal is allowed. The conviction and sentence recorded against the appellant in S.C No. 158 of 2006 by the learned VI Additional Sessions Judge, Vikarabad, Ranga Reddy District are set aside and he is set at liberty forthwith, if he is not required in any other case. Fine amount, if any, paid by the appellant shall be refunded to him. A. GOPAL REDDY, J RAJA ELANGO, J 19-07-2011 ks