THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.287 OF 2007 Between 1.Kolli Satyam and another …Appellants-A1 and A2 And State of A.P. rep. by Public Prosecutor, High Court of A.P. Hyderabad. …Respondent-Complainant THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.287 OF 2007 JUDGMENT: (per the HON’BLE SRI JUSTICE K.C.BHANU) This Criminal Appeal by the appellants-A1 and A2 under Section 374 (2) of the Criminal Procedure Code, 1973 (for short ‘Cr.P.C.’) is directed against the judgment, dated 09-02-2007, in Sessions Case No.97 of 2005, on the file of the VI Additional Sessions Judge, (Fast Track Court), East Godavari District, Rajahmundry, whereunder and whereby the appellants were convicted of the charge under Section 302 r/w 34 of the Indian Penal Code, 1860 (for brevity ‘IPC’) and sentenced to undergo Imprisonment for Life and also to pay a fine of Rs.500/- each, in default to undergo Simple Imprisonment for a period of three months each. 2. Brief facts, that are necessary for disposal of the present appeal, may be stated as follows: P.W.2 is the mother and P.W.3 is the nephew of Buridi Parvathi (hereinafter referred to as ‘the deceased’). The deceased married to P.W.10 and ten days after the marriage, the deceased separated from her husband and started residing at the house of P.W.1. Subsequently, the deceased purchased a vacant site and constructed thatched hut and was residing there. The deceased developed extra marital relationship with one Kolli Govindu, who is the son of A1 and husband of A2. On many occasions, the deceased was chastised by her relations and A1 and A2 for having such relation, but she did not hear their advice. On the date of incident, i.e., on 08-10-2004 at about 10.00 P.M., on hearing the cries of the deceased, P.W.1 and others rushed to the hut of the deceased and found her in flames and on enquiry, she stated to P.Ws. 1 to 3 that A1 and A2 came to her house and A1 caught hold of her tuft of hair and dragged her outside the house. A2 brought kerosene tin and poured kerosene on her body by uttering “Chevave Munda Nuvvu Chastegani Maa Peeda Viragadu”. Then A1 lit fire to her. Thereafter, she was shifted to the hospital. On receiving the information from Government General Hospital, Kakinada, P.W.15 went to the hospital and recorded the statement of the deceased under Ex.P34. Basing on the said statement, P.W.16 registered the case and issued Ex.P36 F.I.R. He then visited the hospital and recorded the statement of the deceased. He also visited the scene of offence and prepared observation report and drew rough sketch of the scene of offence. On 10-10-2004, P.W.17 took up further investigation, visited the hospital and examined the deceased. He then visited the scene of offence and examined P.Ws. 1 to 6 and others. On 11-10-2004 on receiving death intimation under Ex.P38, P.W.17 altered the section of law and issued Ex.P39 altered F.I.R. P.W.18 took up further investigation, re-examined all the witnesses and held inquest over the dead body of the deceased in the presence of P.Ws. 7 and 8. On 11- 10-2004 P.W.13 held autopsy over the dead body of the deceased and opined that the cause of the death was due to septic and toxic conditions due to ante-mortem first degree infected burns and he issued Ex.P32 postmortem certificate. During the course of investigation, P.W.18 arrested the accused and sent them to remand. A2 was found with healed burn injuries. Therefore, she was referred to Government Area Hospital, where she was examined by P.W.14 and issued Ex.P33 wound certificate. P.W.18 obtained copy of dying declaration recorded by the Magistrate and after receiving relevant documents and on completion of investigation, filed charge sheet. 3. The learned Sessions Judge, framed the following charge against the accused: “That on or about the 8th day of October, 2004, in furtherance of common intention of both of you, committed murder by intentionally (or knowingly) causing the death of Buridi Parvathi, and thereby committed an offence punishable under Section 302 r/w 34 IPC.” When the above charge was read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 4. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 18 and got marked Exs.P-1 to P-51 besides case property, M.Os.1 to 6. 5. After closure of the prosecution evidence, the accused were 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. No oral evidence was adduced on behalf of the accused except marking Ex.D1, which is the relevant portion in Section 162 Cr.P.C. statement of P.W.2. 6. The trial Court after analyzing the oral and documentary evidence on record, found the accused guilty and accordingly convicted and sentenced them as above. Challenging the said conviction and sentence, the present appeal has been preferred by the accused. 7. Mr. C.Padmanabha Reddy, learned senior counsel appearing for the appellants-accused contended that written dying declarations said to have been recorded by the concerned Magistrate and the Assistant Sub Inspector of Police, were suppressed by the prosecution, that no explanation was given for not bringing those documents on record, that therefore, it is a case where an adverse inference can be drawn for suppression of material document under Section 114 (g) of the Indian Evidence Act, 1872 (for short ‘the Act’), that the oral dying declaration alleged to have been made to P.Ws. 1 to 3 is totally inconsistent with the written dying declaration said to have been recorded by P.W.15 as in Ex.P34, that in view of these inconsistencies, it is not safe to place an implicit reliance on the evidence of prosecution witnesses so as to base a conviction, that the two dying declarations i.e., oral dying declaration and written dying declaration creates any amount of suspicion with regard to manner of pouring kerosene and setting fire to the deceased, that the presence of A1 and A2 were not spoken to by any of the witnesses, that as the deceased came out of the house immediately after the incident by raising cries, it would definitely drawn the attention of the neighbourers i.e., P.Ws. 1 to 3, that if really A1 and A2 are the assailants of the deceased, they would have seen running away from the scene of offence after the incident and hence, he prays to set aside the conviction and sentence recorded against the appellants. 8. On the other hand, learned Public Prosecutor contended that there is no other reason for P.Ws. 1 to 3 to foist a false case of this nature against the accused, that the inconsistency between the two dying declarations is not of material inconsistency so as to doubt them, that simply because the dying declarations recorded by the Magistrate and the Assistant Sub Inspector of Police were suppressed, it cannot be a ground to discredit the other dying declarations, which found to be true and acceptable, that after elaborate consideration of evidence on record, the trial Court rightly convicted and sentenced the accused and hence, absolutely there are no grounds to interfere with the said conviction and sentence. 9. Now, the point that arises for consideration, in this Criminal Appeal, is whether the prosecution has proved its case, against the accused of the charge under Section 302 r/w 34 IPC, beyond all reasonable doubt? 10. P.W.12 is one of the panchayatdars in whose presence, police observed the scene of offence, which is the house of the deceased situated in 2nd ward, Velampeta of Oolapalli village. They found half burnt nighty having blue and pink colour flowers on the ground. They also found half burnt thread yellow in colour and 5 liter kerosene tine. Besides that, they found one matchbox and two burnt matchsticks. The scene of offence observation report is not seriously in dispute. Police also held inquest over the dead body of the deceased in the presence of mediators. The inquest mediators opined that the deceased died as a result of burn injuries. 11. P.W.13 is the Doctor, who conducted autopsy over the dead body of the deceased, found the following injuries: 1. Blackening present at the burnt pieces. 2. Blisters containing fluid is present over front of both thighs due to burns. 3. Faint smell of kerosene emitting from the sits of burns 4. Line of redness present 5. At places of burns containing foul smelling pus 6. Saline infusion would to both ankles present 7. Singing of front of scalp hair, eye brows, eye lashes due to burns present 8. Stamp ink stains to left thumb, to both great toes present 9. Vital reaction present 10. Feeling of skin due to burns present He opined that the deceased appear to have died due to septic and toxic conditions due to ante-mortem first degree (wilsons) infected burns of about 50% of total body surface and he issued Ex.P32 postmortem certificate. The evidence of P.W.13 and the recitals in Ex.P32 remained unchallenged. Therefore, it is established beyond reasonable doubt that the death of the deceased is homicidal in nature. 12. Now it has to be seen whether the accused are the assailants of the deceased or not? 13. The entire case rests upon the oral evidence of P.Ws. 1 to 3 and Ex.P34, which is the statement recorded by P.W.15. P.W.15 is the person who after receipt of intimation, went to the hospital and at that time, he found that the Magistrate was recording the statement of the deceased in the hospital. After completion of recording the statement by the Magistrate, he started recording the statement under Ex.P34. It is not in dispute that after receipt of medical intimation, the concerned Magistrate also went to Government General Hospital, Kakinada and recorded the statement of the deceased. It is the case of the prosecution that they also obtained certified copy of the dying declaration recorded by the Magistrate. There cannot be any dispute that a statement either verbal or written given by a person as to cause of his death or any of the circumstances leading to his death, when the cause of the death of such person comes into question, is admissible in evidence under Section 32 (1) of the Act. It is equally well settled that if the dying declaration is found to be true, trustworthy and convincing and not an outcome of tutoring or prompting by any of the persons interested, then it can be acted upon and conviction can be maintained even without any corroboration. The incident is alleged to have taken place at about 10.00 P.M. on 08-10-2004 at the house of the deceased. On that day, P.W.1 heard cries and rushed to the house of the deceased, who is no other than her sister-in-law. It is not in dispute that one year prior to the marriage of P.W.1, the deceased purchased vacant site and constructed thatched hut, which is located by the side of the house of P.W.1. Admittedly, the deceased was residing alone. The said thatched hut consisting of one room. P.W.1 and her co-sister were chit chatting in front of the house of P.W.1. At that time, the deceased came to her house and had a talk with them for sometime. Later she went to her thatched hut. Even after the deceased left that place, P.W.1 and her co-sister were conversating with each other. At about 10.00 P.M., they heard the cries of the deceased, rushed to her and found her with burn injuries. If really, the accused entered into the house of the deceased, that would have been noticed by P.W.1 and her co-sister preceding the incident or at any rate immediately after incident in view of the fact that her house is located by the side of the house of the deceased. P.Ws. 1 to 3 did not state about the presence of the accused at the scene of offence before the incident or immediately after the incident. P.W.1 stated that after they went to the house of the deceased and enquired her as to what had happened, the deceased informed that A1 and A2 came to her house, A1 caught hold of her tuft of hair and dragged her outside the house and A2 brought kerosene tin and poured kerosene on her body by uttering “Chevave Munda Nuvvu Chastegani Maa Peeda Viragadu”. Then A1 lit fire to her. In view of the fact that she did not speak about the presence of the accused, she was declared hostile by the prosecution. Though she was declared hostile, that does not mean her evidence has to be wiped out from the record, but such part of her testimony, which inspires confidence can be taken into consideration to corroborate the other evidence, if any, available on record. Therefore, the evidence of P.W.1 cannot be taken as a basis for convicting the accused. 14. P.W.2 is the mother of the deceased. By the time of the incident, the deceased was residing in her house. According to her, on the date of incident, her daughter came to her eldest son’s house with burn injuries and fell down stating that A1 and A2 lit fire to her. On further enquiry, the deceased also stated that A1 caught hold of her tuft of hair and A2 closed her mouth and set fire to her. Then they shifted the deceased to Government General Hospital, Kakinada. As per her evidence, the alleged dying declaration was given at her eldest son’s house, whereas P.W.1 evidence goes to show that the incident had taken place at the house of the deceased. 15. Similarly, P.W.3 who is the nephew of the deceased came out from his room and found the deceased lying on the bed with injuries in the house of his another maternal uncle by name Ramakrishna. It is at that time when he enquired the deceased, she stated that A1 and A2 poured kerosene on her body and set fire to her. At that time, P.Ws. 1 and 2 and others were present. It is in his evidence that in the first instance, he shifted the injured to the Government Hospital, Kakinada. Whereas P.W.2 stated that in the first instance they shifted the deceased to the police station and later to the Government Hospital, Kakinada. The place where the deceased informed about her assailants varies from witness to witness. According to P.W.1, the deceased gave the statement at her house, whereas P.W3 stated that the deceased stated about her assailants at the house of one Ramakrishna, brother of the deceased and P.W.2 stated that the deceased came to the house of her eldest son by name Annavaram Satyanarayana and informed about the assailants. These three dying declarations are inconsistent with Ex.P34, which is the statement recorded by P.W.15 after receipt of hospital intimation, wherein it was stated that as if both the accused caught hold of her hair and dragged her outside the house, poured kerosene on her body and set fire to her with a match stick and fled away. This is inconsistent with oral dying declaration as to the manner of attack because as seen from Ex.P34, the incident alleged to have taken place in front of the house of the deceased where she was dragged out of the house. If that is the case, P.W.1 and her co-sister who were chit chatting in front of their houses would have seen the accused dragging the deceased out side. In Ex.P34, it is stated that both the accused set fire to the deceased, whereas in the oral dying declaration made to P.Ws. 1 to 3, it is A2 who set fire to her. These inconsistencies would not have been arisen if really the deceased gave a statement about her cause of death immediately after the incident. Another important aspect is that when the Magistrate admittedly recorded the dying declaration of the deceased, that has not been seen the light of the day. Similarly, P.W.16 after registration of the case went and recorded the statement of the deceased under Section 161 (3) Cr.P.C. That statement was also suppressed by the prosecution. Under Section 114 (g) of the Act, when that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it, the Court can presume that the prosecution deliberately suppressed the two written dying declarations recorded by the two competent authorities. The presumption that can be drawn in such circumstances is that it would be unfavourable to the prosecution. The prosecution has not given any explanation as to why the important document said to have been admittedly recorded by the Magistrate was not brought on record. The Investigating Officer has also not given any explanation of whatsoever as to why those documents were not marked on behalf of the prosecution. Therefore, in these circumstances, it can be said that the prosecution deliberately withhold those two documents. Perhaps may be the reason those documents are not in favour of the prosecution. 16. Further, recording of Ex.P34 also creates any amount of suspicion because as seen from Ex.P34, the right thumb impression of the deceased was taken, whereas P.W.15 stated that he obtained the right toe impression as there were injuries on the thumb, but the doctor found no burn injuries on the thumb. In view of the inconsistency with regard to place where the incident alleged to have taken place and the person who set fire the deceased, it is unsafe to place an implicit reliance on the oral dying declaration said to have been made to P.Ws. 1 to 3 and the written dying declaration recorded by P.W.15 under Ex.P34. 17. P.Ws. 4 to 9 who are the neighboures to the place of incident did not support the case of the prosecution and they have given a complete go by to their earlier statement. Though they were cross- examined even after taking permission, nothing has been elicited from their cross-examination so as to connect the accused with the crime. 18. In view of the aforesaid reasons, we are unable to place an implicit reliance on the oral dying declaration said to have been made to P.Ws. 1 to 3 and the written dying declaration recorded by P.W.15 under Ex.P34. Therefore, the prosecution case has to be viewed with suspicion especially when the two dying declarations recorded by the two competent officers have been completely suppressed by the prosecution. Hence, benefit of doubt has to be given to the accused. 19. Accordingly, the Criminal Appeal is allowed setting aside the conviction and sentence recorded against the appellants/accused of the charge under Section 302 r/w 34 IPC, by the VI Additional Sessions Judge, (Fast Track Court), East Godavari District, Rajahmundry, vide judgment, dated 09-02-2007, in Sessions Case No. 97 of 2005. The appellants/accused are found not guilty of the charge under Section 302 r/w 34 IPC and accordingly, they are acquitted. The appellants/accused shall be released forthwith, if they are not required to be detained in any other case. Fine amount, if any, paid by the appellants/accused shall be returned to them. -------------------------------------- JUSTICE A.GOPAL REDDY ------------------------------- JUSTICE K.C.BHANU DATED:05-07-2010 Hsd