merely because the deceased had suffered 100% burns that was no ground to discard the dying declaration.

THE HONBLE SRI JUSTICE SURESH KUMAR KAIT AND  THE HONBLE SRI JUSTICE  U. DURGA PRASAD RAO              

Criminal Appeal No.1584 of 2010

07-04-2017

Md. Farooq Appellant

The State of A.P., Rep by its Public Prosecutor,High Court, Hyderabad..
Respondent

Counsel for Appellant : Ms.Naseeb Afshan

Counsel for Respondent: Public Prosecutor (TG)

<Gist:

>Head Note:

? Cases referred:
1)1992 Supp (2) SCC 60
2)(2008) 16 SCC 705
3)(2010) 8 SCC 514
4)(2017) 1 SCC 529


THE HONBLE SRI JUSTICE SURESH KUMAR KAIT        
AND
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          
CRIMINAL APPEAL No.1584 of 2010    
JUDGMENT: (Per Honble Sri Justice U.Durga Prasad Rao)  
        This appeal is filed by appellant/accused aggrieved by the
judgment dated 23.06.2010 in S.C.No.256 of 2009 passed by VI
Additional District and Sessions Judge, Medak at Siddipet whereby
the learned Judge convicted the accused for the offence punishable
under Section 302 IPC and sentenced him to suffer RI for life and to
pay fine of Rs.1,000/- in default of payment of fine amount, to suffer
SI for three months.
2)      The prosecution case is thus:
a)      The deceasedSanthoshi was a resident of Palata village of
Toopran Mandal, Medak District; she married one Yadagiri of
Imampur village; they lived together for one year and thereafter
Yadagiri discarded her and since then the deceased was living at
Nacharam Gutta and eking out her livelihood by doing coolie work.
The accusedMd. Farooq was a resident of Nacharam village and  
living by selling meat.  While so, he developed illicit intimacy with
deceased and enjoyed her sexually at Nacharam Gutta for three
months and thereafter he shifted deceased to Begumpet and kept her
in a rented house of PW1; the accused used to visit the house of
deceased at Begumpet frequently for sexual intercourse. While so,
parents of the accused decided to perform his marriage and fixed the
match; knowing about the said fact deceased used to quarrel with
accused. On that accused thought deceased would not allow him to
marry another girl and decided to eliminate her.
b)      On 15.03.2009, as usual, he visited the house of deceased and
spent that night. On 16.03.2009 at about 7 AM, he poured kerosene
on her and set fire and threw away the empty plastic kerosene tin
into the bushes behind the bathroom and fled away. On hearing her
cries, the neighbours came there and put off the flames and shifted
her to Gajwel Government Hospital and thereafter to Gandhi
Hospital, Secunderabad for better treatment where she succumbed to
injuries on 18.03.2009 at about 10.40 PM while undergoing
treatment. PW10X Additional Metropolitan Magistrate,
Secunderabad recorded her dying declaration in Gandhi Hospital.
c)      On 19.03.2009 at about 6.30 PM, PW4 gave Ex.P4    
complaint to PW11SI of Police. Basing on the said complaint
PW11 registered a case in Cr.No.27 of 2009 under Section 174
Cr.P.C and took up investigation. He examined PW4 and recorded
his statement; directed PW13Head Constable to hold inquest over
the dead body of the deceased in the hospital; examined PWs.1, 3
and P.Laxmimother of deceased (LW5) and recorded their  
statements; visited the scene of offence in the presence of PWs.6 and
7; prepared Ex.P16scene of observation report and Ex.P17  
rough sketch and sent the dead body of the deceased for post-mortem
examination. PW12Dr. V.Sandhya Manohar who conducted      
autopsy over the dead body of the deceased, issued Ex.P18post-
mortem report and opined that cause of death was due to burns.
d)      On 31.03.2009, on receipt of Ex.P13dying declaration,
PW11 altered the section of law from 174 Cr.P.C. to Section 302 IPC
and issued altered memo to Magistrate Court and handed over the
case to PW14Inspector of Police for further investigation. After
taking charge, PW14 arrested the accused on 09.04.2009 at 6 PM at
Nacharam village and basing on the confessional statement made by
accused, recovered MO1empty kerosene tin and after completion  
of investigation laid charge sheet under Section 302 IPC.
e)      On appearance of the accused, the trial Court framed charge
under Section 302 IPC against him and conducted trial.
f)      During trial, PWs.1 to 14 were examined and Exs.P1 to P22
were marked and MO1empty kerosene plastic tin was exhibited on  
behalf of prosecution. No oral or documentary evidence was let in on
behalf of defence.
g)      After completion of trial, the accused was examined under
Section 313 Cr.P.C. and incriminating circumstances revealed in the
prosecution evidence were put to him and the accused denied.
3)      The trial Court after considering both oral and documentary
evidence observed that version of deceased in her dying declaration
was convincing, credible and free from all infirmities and accordingly,
convicted and sentenced the accused as stated supra.
        Hence the appeal.
4)      Heard arguments of Ms. Naseeb Afshan, learned counsel for
appellant and learned Public Prosecutor for the State (Telangana).
5a)     Severely fulminating the conviction recorded by the trial Court
in the impugned judgment, learned counsel for appellant would
firstly argue that the evidence of PWs.1, 2, 4 and 13 and Ex.P.20
inquest report clinchingly established that the deceased due to
poverty and lack of sustenance disgusted with the life and committed
suicide by self-immolation and inspite of the aforesaid clinching
evidence, the trial Court basing on Ex.P.13dying declaration came
to a wrong conclusion that the accused caused the death of deceased
by pouring kerosene and setting her ablaze. Learned counsel argued
that the so-called dying declaration was shrouded with many doubts.
For instance, learned counsel would narrate, the deceased admittedly
suffered 90% burns due to which sedatives and pain killers must
have been administered on her to relieve her of the pain and in that
critical condition, it was most unlikely that she was in a conscious,
coherent and fit state of mind to give declaration before the
Magistrate. Therefore, the dying declaration given in such state of
mind should not have been made as a sole basis for conviction.
Nextly, the mother of the deceased was with her and tutored her to
speak ill against the accused and hence the dying declaration was not
a voluntary statement of deceased.
b)      Secondly, learned counsel argued that even assuming for
arguments sake the dying declaration was true, still the prosecution
failed to establish that the person Farooq referred by the deceased in
her dying declaration and the accused are one and the same. In fact,
in Ex.P12requisition issued by S.I of Police to the Magistrate he
referred the deceased as wife of one Yadagiri. Therefore, it is quite
unknown whether the deceased was the wife of Yadagiri or one
Farooq and further, whether the said Farooq is the accused in this
case. PW.10the learned Magistrate who recorded her dying
declaration did not elicit the particulars of Farooq who was
mentioned by the deceased as her husband. In that view also, it
cannot be said that the person Farooq referred in the dying
declaration and the accused are one and the same.
c)      Thirdly, learned counsel would argue that the prosecution
miserably failed to establish the intimacy between the accused and
deceased and their leading conjugal life together and motive for the
accused to kill the deceased.
        Learned counsel thus prayed to allow the appeal and set aside
the judgment of trial Court.
6a)     Per contra, while supporting the judgment, learned Public
Prosecutor would argue that though some of the witnesses did not
support the prosecution case to full extent, still the admissible
portion of the evidence of PWs.1, 2  and 4 would clearly establish
that the accused and deceased lived in the rented house of PW1 and
they cohabited together as wife and husband and therefore, the
accused cannot plead total ignorance or lack of intimacy with the
deceased and such an argument is too nave to be believed. Thus, the
prosecution could establish the intimacy between the accused and
deceased.
b)      Then, the motive for accused to commit the offence and the
incident are concerned, the deceased had, in Ex.P13 vividly narrated
that the accused is her husband and he wanted to have another
marriage for which she objected and he got angry upon her and
abused her and on the morning of 16.03.2009 he poured kerosene
and set her fire. Learned Public Prosecutor vehemently argued that if
the accused had no previous acquaintance and intimacy with her,
there was no need for her to falsely implicate him in the case. The
trial Court rightly believed the version of the deceased who was the
victim and convicted the accused and there were no merits in the
appeal and appeal may be dismissed.
7)      In light of above rival arguments, the point for determination
is:
Whether the conviction and sentence recorded by the trial Court are
factually and legally sustainable?
8)  POINT:   The prosecution case is already narrated supra. As
stated, the plea of accused is one of total denial of the offence.  He
even pleaded lack of knowledge and intimacy with her.
9)      Record shows there were no direct witnesses to the incident
and the prosecution case pivots mainly on the dying declaration of
the deceased and other corroborating evidence. Hence, the evidence
of PW10 and Ex.P13 have to be scrutinised to know whether the
prosecution could establish the complicity of accused.
10a)    PW10 is the X Additional Metropolitan Magistrate,
Secunderabad.  He deposed, on 16.03.2009 at about 6.30 PM on  
receiving Ex.P12requisition from SHO, Chilakalaguda PS, he went
to Gandhi Hospital, Secunderabad and recorded the dying
declaration of the deceasedSanthosa at about 7.00 PM. He stated
that before recording her statement, he put preliminary questions to
her to ascertain her ability to give statement. He deposed that duty
doctor who was present at the time of recording dying declaration,
had certified that victim was in a conscious, coherent and fit state of
mind to give statement and then he recorded her statement. Learned
Magistrate further stated that the victim had narrated him that she
married Farooq about one year back and they started living in the
village near Gutta and she belong to Vaddera community and her
husband belonged to Muslim community. She further stated to
Magistrate that her husband wanted to marry another girl and she
opposed, then he picked up quarrel with her and out of angry, he
abused her in filthy language. She further stated, on the fateful day
i.e. 16.03.2009 in the morning while she was in the house he poured
kerosene on her and set fire with a match stick and fled away from
the scene of offence; when she raised hue and cry, he again came and
brought her to the hospital. She emphatically stated that her husband
was responsible for her death. Learned Magistrate further deposed
that before closing the statement the duty doctor who was present
through out, had again certified that patient was conscious, coherent
throughout her statement. The Magistrate read over the contents of
the statement to the declarant and she admitted it to be true and
correct and then he obtained the impression of her left toe as the
fingers of her both hands were burnt completely. PW10 further
stated that while recording the statement, except himself and duty
doctor none others were present beside the declarant. Recording of
the statement was commenced at 7.00 PM and closed at 7.15 PM.  
b)      PW10 was extensively cross-examined by the accused but  
nothing specific was elicited to impeach the credibility of the dying
declaration.  In the cross-examination he stated that preliminary
questions were in printed format whereas substance of her statement
was noted in handwriting. PW10 stated that in Ex.P12requisition
since the name of her husband was mentioned as Yadagiri, he
referred the deceased as Santosha w/o Yadagiri at the beginning of
dying declaration. The witness said that for question No.2(what is
your father/husband name) she answered as Farooq and this
witness forgot to strike out the word father at the question and he
claimed that it was a his bona fide mistake. He further stated that
when he went to the hospital none of her relations were at the bed of
the victim. He further deposed that according to him, her husbands
name is Farooq and earlier entry in the preamble of the dying
declaration, referring the victim as w/o Yadagiri has no relevancy in
view of statement given by deceased that she was the wife of Farooq.
The witness admitted that except giving her husbands name as
Farooq she did not give the particulars of Farooq. He admitted he did
not ask the victim whether she begot children through Farooq or
Yadagiri as he has no necessity to put such question. PW10 further
admitted that as per Ex.P12, the deceased sustained 90% burn
injuries and duty doctor informed him they did not give any
sedatives to the declarant. He admitted, he does not know whether
the patient who suffered 90% burns would have lot of pain and
agony as he had no medical knowledge in that regard. He denied the
suggestion that his statement that no sedatives were given to the
victim is false. He denied the further suggestion that the mother of
the deceased tutored her before his visit and Ex.P13 was not a free
and voluntary statement.
     The above is the evidence of PW10 with regard to dying
declaration given by the deceased.
11)     Then, a perusal of Ex.P13dying declaration which was
recorded in Telugu by PW10 shows, it is in tune with the deposition
of PW10. Now, the crucial questions concerning to Ex.P13 are,
whether the dying declaration was recorded at the earliest point of
time after the incident and if so, whether it was the free and
voluntary statement of the deceased or it was a tutored one and
further, whether the contents of the dying declaration were true and
infuse confidence in the mind of court to believe the version of
deceased.
12)     In the above context, Exs.P12, P13 and evidence of PW10
would show that the incident was occurred at 7.00 AM on
16.03.2009 and the deceased was admitted in Gandhi Hospital in the
afternoon and the hospital authorities sent telephonic information at
14.45 hours to police and the police in turn sent requisition to PW10
at 6.30 PM and PW10 commenced recording dying declaration at  
7.00 PM. Thus, the whole process would show that the dying
declaration was recorded at the earliest point of time and no delay
was occurred.
13)     PW10 emphatically stated that while recording the statement
except himself and the duty doctor none others were present beside
the declarant. Therefore, it can be safely concluded that the dying
declaration was the voluntary statement of the deceased and not a
product of tutoring by any body. Even otherwise, the evidence
shows, since after incident, the deceased was shifted from one
hospital to another hospital in quick succession and therefore, there
could be no occasion for anybody to tutor her to give false statement.
On that count also her statement can be believed to be intrinsic.
14)     As the contents of her statement are concerned, she
emphatically stated that herself and Farooq married about one year
back and set up their family near Gutta and her husband wanted to
marry another lady for which she opposed and therefore, he picked
up quarrel with her and out of anger he abused her and on the
morning of the incident, he poured kerosene and set fire on her with a
match stick and fled away. Thus, she narrated in clear tone, how the
accused perpetrated the crime. If really the accused was a stranger to
her as claimed by him, there was no necessity for her to implicate
him in a false case. Ex.P13 and the evidence of PW10 would show
the duty doctor had certified that the victim was in a conscious,
coherent and fit state of mind to give the statement. Ex.P13
demonstrates that the duty doctor certified her condition before and
after recording her statement. Hence, her statement can be safely
relied upon.
15)     The law on probative value of dying declaration is no more res
integra. The doctrine of dying declaration as enshrined under Section
32 of Evidence Act, 1872 is an exception to the general rule
contained in Section 60 of the Evidence Act which says oral evidence
in all cases must be direct i.e. it must be the evidence of a witness
who claims he saw the incident. The dying declaration is an
exception in the sense that it is the statement of a person who cannot
be called as a witness and therefore cannot be subjected to cross-
examination. His statement is divulged through the evidence of
another person who records such statement called dying declaration.
If the dying declaration infuses confidence and the court concludes
that the said declaration is free from prompting or tutoring, it can
base the conviction on the sole dying declaration without seeking for
corroboration from other evidence. Its acceptability is based on the
legal maxim nemo moriturus praesumitur mentire, which means a
man will not meet his maker with a lie on his mouth.  Generally it is
believed that the truth sits on the lips of a dying person and in his
last moments of departing from the mundane world, he would not
venture to tell lies more so with regard to cause of his death and
about his assailant. This belief generally guides the courts to accept
the dying declaration. Of course, if the accused can, by cogent
material, able to raise a suspicion about the genuinety of the dying
declaration, then the court may reject the dying declaration or seek
for corroboration.
16)     In State of U.P. vs. Shishupal Singh  the Apex Court observed
thus:
Para5. Needless to say that the law is well settled by the
judicial pronouncements of this Court as well as by various
High Courts that a conviction can be safely placed on a dying
declaration provided the said dying declaration is free from
vice of infirmities and if that dying declaration commands
acceptance at the hands of the Court.
17)     In Samadhan vs. State of Maharashtra  it is held as under:
Para16. A judgment of conviction can be recorded on
the basis of a dying declaration alone, but the court must
have been satisfied that the same was true and voluntary.
Indisputably, for ascertaining the truth as regards the
voluntaries of making such a dying declaration, the court
is entitled to look into the other circumstances but the
converse may not be true.
18)     In Lakhan vs. State of M.P.  the Apex Court observed thus:
Para--9. This Court has considered time and again the
relevance/probative value of dying declarations recorded
under different situations and also in cases where more than
one dying declaration has been recorded. The law is that if the
court is satisfied that the dying declaration is true and made
voluntarily by the deceased, conviction can be based solely on
it, without any further corroboration. It is neither a rule of law
nor of prudence that a dying declaration cannot be relied upon
without corroboration. When a dying declaration is suspicious,
it should not be relied upon without having corroborative
evidence. The court has to scrutinize the dying declaration
carefully and must ensure that the declaration is not the result
of tutoring, prompting or imagination. The deceased must be in
a fit state of mind to make the declaration and must identify the
assailants.
19)     In Ramesh and others vs. State of Haryana  when the trial
Court refused to act upon the dying declaration, the High Court
reversed the judgment and recorded conviction on the sole strength of
dying declaration. The High Court carped the approach of the trial
Court towards dying declaration and observed that the trial Court
was required to appreciate as to whether the statement of the
deceased was given in a fit state of mind and it was voluntarily given
without being influenced by any extraneous circumstances and
without any tutoring and if so, the dying declaration could be
believed. The High court further observed that doctor had declared
deceased was fit to make statement on which the Judicial Magistrate
recorded the statement and even after recording of the statement, the
doctor again endorsed that the deceased remained fit during the
period her statement was recorded and in that backdrop, merely
because the deceased had suffered 100% burns that was no ground to  
discard the dying declaration. The Apex Court ultimately agreed with
the High Court.
        In the light of above precedential jurisprudence and the dying
declaration being free from blemishes and infirmities, we hold on its
sole strength, the accused was guilty.
20a)     Now, coming to the arguments advanced on behalf of
appellant/accused, it is true that in Ex.P20 and in the evidence of
PWs1, 2, 4 it was stated as if the deceased committed suicide.
However, the categorical evidence of PW10the learned Magistrate
who recorded the dying declaration of the deceased manifests that the
deceased was set ablaze by the accused and it was not a case of
suicide. No motive can be attributed to PW10 who is the Magistrate.
In view of his categorical evidence, the evidence of PWs.1, 2 and 4
and Ex.P20 cannot be given weight. It must be noted that PWs.1, 2
and 4 and inquest mediators were admittedly not eye-witnesses and 
their depositions are only hear say version which cannot compete
with the pathetical and truthful disclosure of victim.
b)      The next argument was that the deceased suffered 90% burns
and thereby she must have been administered with sedatives and
hence she could not have given statement in a conscious and coherent
state of mind. This argument, it must be said, holds no substance for
the Magistrate deposed that the duty doctor informed him that they
did not give any sedatives to the declarant. Further, PW12the
post-mortem doctor stated that in case of burn injuries patient will
speak until a few minutes or few hours before death. Above all,
Ex.P13 shows that the duty doctor certified that the declarant was
conscious, coherent and in a fit state of mind to give statement both
before and after recording of the statement. In the light of strong
evidence, there can be no demur about the fitness of the declarant to
give statement.
c)      It was then argued that the mother and other relations of the
deceased tutored her before arrival of the Magistrate. This argument
also does not hold water because PW10 categorically stated that
while recording statement except himself and duty doctor none
others were present.  Hence, tutorage is only a myth.
d)      Further argument is that though deceased referred one Farooq
as her husband, the prosecution failed to establish that the said
Farooq and the accused is one and the same person and also the
intimacy between the accused and deceased. It was further argued
that in fact in Ex.P12 the deceased was referred as wife of one
Yadagiri and therefore, it was not clear whether she was the wife of
one Yadagiri or one Farooq or some other person.  This argument
also does not hold conviction as there is no identity problem with
regard to accused. It may be noted that though PWs.1 and 2 who are
the owner of the house of deceased and his son turned hostile on a
different aspect, still they stated that the accused used to visit the
house of the accused now and then. Thus, this fact establishes the
intimacy between the deceased and accused. Hence, it is futile on the
part of appellant to contend that the prosecution failed to establish
the intimacy.
23)     Thus, on a conspectus of facts and evidence, we hold that the
conviction and sentence passed by the trial Court do not suffer from
any perversity or illegality.
24)     Accordingly, this Criminal Appeal is dismissed by confirming
the judgment of the trial Court.
        Consequently, miscellaneous applications pending, if any, shall
stand closed.
______________________  
SURESH KUMAR KAIT, J    
_________________________  
U. DURGA PRASAD RAO, J    
Date: 07.04.2017

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